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
At the outset, the Court notes that the Honorable Catherine C. Schaewe
addressed the sufficiency of claimant’s April 30,
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
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.