New York State Court of Claims

New York State Court of Claims

JACOBY v. STATE OF NEW YORK, #2007-037-061, Claim No. 112544, Motion Nos. M-74000, M-74075, CM-74240


Synopsis



Case Information

UID:
2007-037-061
Claimant(s):
BRENT JACOBY, 05-B-0361
Claimant short name:
JACOBY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112544
Motion number(s):
M-74000, M-74075
Cross-motion number(s):
CM-74240
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Brent Jacoby, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 18, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion (M-74000) for an order striking the demand for admissions or for a protective order, Claimant’s motion (M-74075) for an immediate trial date, and Defendant’s cross-motion (CM-74240) to dismiss the claim, compel discovery, and for a preclusion order.
1. Defendant’s notice of motion (M-74000) and supporting affidavit of Assistant

Attorney General Richard B. Friedfertig sworn to September 20, 2007, with annexed Exhibits A-B;

2. Claimant’s notice of motion (M-74075) dated September 26, 2007 and unsworn

affidavit[1] of pro se Claimant Brent Jacoby in opposition to Defendant’s motion and in support of Claimant’s motion with annexed Exhibits A-B;

3. Supplemental unsworn affidavit of pro se Claimant Brent Jacoby in support of

Claimant’s motion dated November 8, 2007;

4. Defendant’s cross-motion (CM-74240) and affidavit of Assistant Attorney General

Richard B. Friedfertig in opposition to Claimant’s motion and in support of Defendant’s cross-motion sworn to November 20, 2007, with annexed Exhibits A-F.


Filed papers: Claim filed July 19, 2006; Amended Claim filed November 9, 2006; Amended Answer filed March 28, 2007.

Pro se Claimant served upon Defendant a second demand for admissions dated September 6, 2007 (Defendant’s Exhibit A). In an earlier decision and order this Court struck Claimant’s first request for admissions (see Jacoby v State of New York, Ct Cl, July 13, 2007, Moriarty, J., claim no. 112544, motion nos. M-73474 and CM-73561, UID # 2007-037-028).[2] Defendant now moves to strike Claimant’s second demand for admissions.

Section 3123 of the CPLR is entitled “[a]dmissions as to matters of fact, papers, documents and photographs.” Pursuant to statute, a notice to admit permits service of “a written request for admission ... of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs ... ” (CPLR § 3123[a]). A notice to admit may also be used for the disposition of uncontroverted questions of fact, but it may not be used to compel admissions of fundamental and material issues or ultimate facts that can only be resolved after trial (see Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 [2000]). Here, Claimant’s request for admissions is improper as it seeks admissions of contested, ultimate facts and material issues (see Moore v State of New York, Ct Cl, October 20, 2000, Ruderman, J., claim no. 100356, motion nos. M-62148, CM-62378, UID # 2000-010-072), and, like his original demand, improperly contains requests that are not in the form of admissions, but rather in the form of interrogatories or deposition questions (see Blackwell v State of New York, Ct Cl, March 4, 2002, Patti, J., claim no. 102669, motion no. M-64246, UID # 2002-013-005; DeSilva v Rosenberg, 236 AD2d 508 [1997]). The proper remedy is to strike the entire request for admissions (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453 [1995]; Berg v Flower Fifth Ave. Hosp., 102 AD2d 760 [1984]). Accordingly, Defendant’s motion for an order striking in its entirety Claimant’s request for admissions dated September 6, 2007 (motion no. M-74000) is granted.[3]

By separate motion (M-74075), Claimant requests that the Court deny the relief requested by Defendant in its motion (M-74000) and moves for a trial date at the court’s earliest convenience. Generally, prisoner pro se civil claims are tried in the order in which the claims are filed. Pursuant to § 3403 (a) of the CPLR, a trial preference may be granted in a civil action when: 1) the action is against the State and the State requests a preference; 2) the action is one in which a trial preference is provided for by statute; 3) the action is one in which the interests of justice will be served by an early trial; 4) the action was brought by a person who has reached 70 years of age; 5) the action is one to recover for medical, dental or podiatric malpractice; or 6) the action was brought by a party who is terminally ill and who alleges that the illness was caused by the Defendant. None of these circumstances are present or even alleged herein. All claims in the Court of Claims are commenced against the State and, therefore, the first paragraph can not serve to give any one party a preference (Davidson v State of New York, Ct Cl, December 27, 2006, Sise, P. J., claim no. 105260, motion no. M-71892, UID # 2006-028-606). Moreover, it is the Claimant and not the State who has requested the preference. Accordingly, the first paragraph of the trial preference statute is inapplicable. In addition, there is no statutory preference relevant to this action, the Claimant has not alleged that he is over 70 years of age or terminally ill, and the action does not involve allegations of medical, dental or podiatric malpractice. Finally, Claimant does not even allege that the interests of justice will be served if his claim were granted a trial preference over other civil actions commenced by inmates. The Claimant has failed to set forth any circumstance that would entitle him to a trial preference under § 3403 (a) of the CPLR. Thus, Claimant’s motion (M-74075) for an immediate trial is denied.

Finally, by cross-motion (CM-74240) Defendant moves to dismiss the claim, compel discovery and preclude Claimant. In the supporting affidavit, Assistant Attorney General Friedfertig argues that the Claimant has failed to provide complete responses to Defendant’s notice for discovery and inspection dated March 27, 2007 (Defendant’s Exhibit A), Defendant’s notice for discovery and inspection dated June 21, 2007 (Defendant’s Exhibit C), and a letter request dated September 19, 2007 (Defendant’s Exhibit E). In reviewing Claimant’s responses (see Defendant’s Exhibits B and D), the Court is satisfied that Claimant has made a good faith effort to comply with Defendant’s discovery demands. Moreover, copies of certain I-64s and misbehavior reports which Defendant has demanded and which Claimant has advised he is unable to provide due to a lack of funds are already in Defendant’s possession. Defendant need only review the attachments to the pleadings and earlier motion papers to find copies of most, if not all, of the documents it seeks to compel Claimant to produce. Accordingly, Defendant’s cross-motion is denied in its entirety.

Based on the foregoing, it is hereby

ORDERED, that Defendant’s motion (M-74000) to strike Claimant’s demand for admissions dated September 6, 2007 is granted; and it is further

ORDERED, that Claimant’s motion (M-74075) for a trial preference is denied; and it is further

ORDERED, that Defendant’s cross-motion to dismiss, compel discovery, and for a preclusion order (CM-74240) is denied in its entirety.



January 18, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. The Court need not consider Claimant’s “affidavit in support” as it is unsworn and as Claimant has been advised in the past of the necessity of submitting a sworn affidavit (see Jacoby v State of New York, Ct Cl, July 13, 2007, Moriarty, J., claim no. 112544, motion nos. M-73474 and CM-73561, UID # 2007-037-028; Jacoby v State of New York, Ct Cl, February 16, 2007, Moriarty, J., claim No. 112544, motion nos. M-72649 and CM-72687, UID # 2007-037-009). The Court has, however, read and considered Claimant’s unsworn affidavit.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.nyscourtofclaims.state.ny.us.
[3]. Paragraph 2 and the “[w]herefore” paragraph of Assistant Attorney General Friedfertig’s affidavit requests an extension of time to respond to interrogatories. No interrogatories were annexed to Defendant’s motion papers and, after reviewing the file, the Court is satisfied that this request was properly the subject of earlier motions (M-73474 and CM-73561) and is not currently before the Court.