New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-044-546, Claim No. 109512, Motion No. M-72778


Synopsis


Claimant’s motion to reargue Court’s denial of his prior motion to compel discovery was denied even though defendant did not timely respond to the demands, because the demands (essentially a deposition on written questions, to which defendant did not consent) were "palpably improper.

Case Information

UID:
2007-044-546
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-72778
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SHAWN GREEN, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL]BY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)

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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] Claimant now moves for reargument of this Court’s denial of his prior motion to compel discovery (Green v State of New York, Ct Cl, Nov. 21, 2006, Schaewe, J., Claim No. 109512, Motion No. M-72126 [2006-044-517]). In that decision, the Court held that claimant’s “Written Depositions” and “Interrogatories” (which were, substantively, actually a deposition on written questions) were improper given that defendant had not stipulated to the use of such a discovery device pursuant to CPLR 3108. Defendant opposes the motion to reargue.

Claimant argues that defendant's right to object to the “Interrogatories” and “Written Depositions” was waived due to its failure to respond to them in a timely fashion. Claimant is generally correct that various provisions of CPLR Article 31 provide that a party's failure to timely respond waives that party's right to object to a discovery demand (see e.g. CPLR 3133 [a]; CPLR 3115 [e]). However, there is an exception to this rule in the cases where the demands infringe upon a matter privileged under CPLR 3101, or where the demands are palpably improper (McMahon v Aviette Agency, 301 AD2d 820, 821 [2003]).

In this instance, and as set forth in the prior decision, claimant's demands were palpably improper, as CPLR 3108 requires that both parties stipulate to the use of the discovery device of a deposition on written questions, which both demands were.

Accordingly, claimant having failed to establish that the Court misapprehended or overlooked any relevant facts or that the Court misapplied any controlling principle of law, reargument is not available (CPLR 2221 [d] [2]; see generally Foley v Roche, 68 AD2d 558, 567-568 [1979]).

Claimant’s Motion No. M-72778 for reargument is denied.

June 5, 2007
Binghamton, New York

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


The following papers were read on claimant’s motion for reargument:

  1. Notice of Motion filed on December 29, 2006; “Affirmation” of Shawn Green sworn to on December 26, 2006; and Memorandum of Law dated December 26, 2006.
2) Affirmation in Opposition of Joseph F. Romani, AAG, dated February 2, 2007.


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