New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-044-544, Claim No. 109512, Motion No. M-73170


Synopsis


Although it appears that defendant did not respond to claimant’s notice to admit, claimant’s motion to compel must be denied, as that remedy is not available with respect to notices to admit.

Case Information

UID:
2007-044-544
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109512
Motion number(s):
M-73170
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SHAWN GREEN, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 5, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim against defendant State of New York (“defendant”) alleging that he was not provided with adequate medical care because he was deprived of prescription medication, a diabetic diet and barber services (for trimming his beard).[1]

This is yet another in a series of motions made in this claim by claimant over the years to compel defendant to respond to his discovery demands. In Motion No. M-69070, claimant moved to compel a response to various discovery demands dated June 14, 2004, to which defendant has never responded. Defendant requested a 120-day adjournment of the motion in order to respond to the demands, which the Court granted (Green v State of New York, Ct Cl, Oct. 19, 2004, Lebous, J., Claim No. 109512, Motion No. M-69070 [UID # 2004-019-590]). The parties were instructed to keep the Court advised in writing of the status of the discovery, and to make a supplemental submission to the Court on the adjourned motion date, if necessary, to address any remaining discovery issues. The Court received no subsequent submissions from either party, and thus deemed the matter resolved and denied claimant’s motion as moot (Green v State of New York, Ct Cl, Feb. 3, 2005, Lebous, J., Claim No. 109512, Motion Nos. M-69070 and M-69431 [UID # 2005-019-507]).

Subsequently, claimant again moved to compel discovery, this time regarding various demands dated April 19, 2006. Defendant served responses to the demands along with its responsive motion papers, and the Court therefore denied the motion as moot (Green v State of New York, Ct Cl, Nov. 21, 2006, Schaewe, J., Claim No. 109512, Motion No. M-72126 [UID # 2006-044-517]).

Claimant now moves - again - to compel a response to the “Admissions” portion of the discovery demand dated June 14, 2004. Defendant opposes the motion, apparently (although it is unclear) on the ground that it has responded by objecting to the demands as being improper. However, the letters and other discovery responses submitted with defendant’s motion papers are not responsive to the particular set of notices to admit which are in issue here, i.e. those dated June 14, 2004.

While a motion to compel is not available with respect to notices to admit (CPLR 3124), the Court does note that a party’s failure to respond at all generally is deemed an admission (Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C:3123:5, at 402), and the facts set forth in such notice will be deemed as true (Carlson v Travelers Ins. Co., 35 AD2d 351 [1970]).

Claimant’s Motion No. M-73170 to compel responses to his notices to admit is denied, as that is not an available remedy in this situation.

July 5, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion to Compel filed on March 26, 2007; “Affirmation” of Shawn Green sworn to on March 16, 2007; Memorandum of Law dated March 16, 2007, and attached exhibits.

2) Affirmation in Opposition of Geoffrey B. Rossi, AAG, dated May 4, 2007, and attached Exhibits A through F.

Filed papers: Claim filed on June 21, 2004; Verified Answer filed on July 23, 2004; Supplemental Claim filed on July 19, 2004; Verified Answer to Supplemental Claim filed on August 16, 2004; DECISION AND ORDER, Lebous, J., Claim No. 109512, Motion No. M-69070, filed on October 22, 2004; DECISION AND ORDER, Lebous, J., Claim No. 109512, Motion Nos. M-69070 and M-69431, filed on February 16, 2005; DECISION AND ORDER, Schaewe, J., Claim No. 109512, Motion No. M-72126, filed on November 28, 2006.


[1]. Claimant’s supplemental claim adds two bailment causes of action.