New York State Court of Claims

New York State Court of Claims

GREEN v. STATE OF NEW YORK, #2007-045-024, Claim No. 110190, Motion No. M-73926


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Shawn Green, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on this motion: Claimant’s Notice of Motion, Claimant’s Affirmation in Support, Claimant’s Memorandum of Law with Annexed Documents, Defendant’s Affirmation in Opposition, Claimant’s Reply, the filed Claim, the filed Answer and Defendant’s filed Response, dated August 14, 2006, to Claimant’s Demands for Admissions Interrogatories and Discovery. Claimant, Shawn Green, a pro se inmate, moves this Court for an order pursuant to Civil Practice Law and Rules (CPLR) 3104[a] and 3126 granting a special referee for disclosure and monetary sanctions.

The underlying claim involves an assault with a fellow inmate on September 10, 2004 at the Southport Correctional Facility. Claimant alleges liability against defendant, the State of New York, based on negligent supervision provided by the Department of Correctional Services’ personnel at the facility. Claimant asserts that as a result of the incident defendant improperly imposed restraint orders on him and deprived him of several privileges and services. Claimant also states that he ordered and paid for a book in December 2003. He continues that he never received the book or received a return of his payment for the book due to the negligence of defendant’s agents at the Green Haven Correctional Facility. He contends that Correction Counselor, P. Klatt failed to return claimant’s documents that prove funds were embezzled from his inmate account.

In the present motion claimant asserts that defendant engaged in a “deliberate misleading and uncooperative course of conduct in responding to claimant’s discovery demands” dated April 30, 2006 and July 20, 2007. As a result claimant is seeking the appointment of a special referee to oversee the discovery process as well as the imposition of sanctions against defendant.

At the outset, the Court notes that the Honorable Catherine C. Schaewe addressed the sufficiency of claimant’s April 30, 2006[1] discovery demand in her Decision and Order filed November 28, 2006. Although Judge Schaewe did not reach the merits of the motion, she identified certain improper requests contained in claimant’s demand and stated that defendant’s responses were appropriate.

Turning to claimant’s present application, this Court must point out that the proper remedy for a failure to appropriately respond to a notice to admit is contained within CPLR 3123(c). CPLR 3123(c) contemplates a motion being made at or immediately following trial provided that claimant can prove the truth of the matter of fact sought to be admitted. Thus, claimant’s motion in regard to the admissions portions of his demands is premature. Nevertheless, the Court finds that claimant has failed to show that defendant wilfully failed to disclose information in response to his requests for admissions (see CPLR 3126). Additionally, the Court finds that defendant’s responses to claimant’s interrogatories were appropriate given the lack of specificity, such as a limiting time frame, contained in the interrogatories. The Court also finds that defendant’s responses to claimant’s document requests were also appropriate.

Finally, it is well settled that “the supervisory power conferred by CPLR 3104 should be exercised sparingly and its exercise is not warranted in the absence of special circumstances” (DiGiovanni v Pepsico, Inc., 120 AD2d 413 [1st Dept 1986]). The Court finds that such special circumstances do not exist in this matter.

Therefore, for the foregoing reasons, claimant’s motion is denied.

November 8, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].Judge Schaewe identified claimant’s April 30, 2006 discovery demand as claimant’s June 1, 2006 discovery demand, the date it was stamped as received by the Attorney General’s Office.