New York State Court of Claims

New York State Court of Claims

FULTON v. THE STATE OF NEW YORK, #2008-015-063, Claim No. 114727, Motion No. M-74996


Synopsis


Pro se inmate's motion to compel discovery was granted in part and denied in part.

Case Information

UID:
2008-015-063
Claimant(s):
ALVIN FULTON, JR.
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
FULTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114727
Motion number(s):
M-74996
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Alvin Fulton, Jr.
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 4, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for an order compelling the defendant to provide responses to his Request For Admissions and Request For Production of Documents. Claimant also moves for a trial by jury. Claimant alleges that he suffered food poisoning after eating Vienna Sausages he purchased from the commissary at Great Meadow Correctional Facility on January 8, 2007. Annexed to the claim is the receipt for the purchase of the sausages, a copy of the label and the markings on the can which indicate that the sausages should have been consumed by May 21, 2005. On April 8, 2008 the claimant served the defendant with a Request For Admissions and on February 23, 2008 he served the defendant with a Request For Production Of Documents. Despite good faith attempts to elicit responses to these demands, none were forthcoming until claimant served the instant motion to compel. In opposition to the motion, defendant indicated in an attorney's affirmation that responses to the demands were attached as Exhibit A. Review of Exhibit A indicates only a response to the Request For Admissions dated June 16, 2008 and an affidavit of service reflecting service on that same date. No response to the Request For the Production of Documents was submitted and, according to the claimant, none was received.

Claimant's motion to compel a response to his Request For Admissions is unnecessary. As noted by claimant in his reply to this motion, when the response to his notice to admit was finally served on June 16, 2008, it was long overdue. CPLR 3123 states "[e]ach of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters" (emphasis added). Thus, CPLR 3123 is self-executing in the sense that the matters as to which an admission has been requested are deemed admitted if the noticed party fails to timely respond (see Kowalski v Knox, 293 AD2d 892 [2002]; Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 83 AD2d 815 [1981]; Miserendino, Krull & Foley v Crump, 64 AD2d 842 [1978]). Accordingly, the instant motion is denied as unnecessary to the extent it seeks to compel a response to claimant's Request For Admissions.[2]

The defendant completely failed to either respond or object to the claimant's Request For Production Of Documents (see CPLR 3103, 3122). Although the defendant opposes the instant motion on the ground that the claimant failed to attach copies of his discovery demands to his motion, the demands were properly filed with the office of the clerk as required by the rules of this Court (see 22 NYCRR § 206.5 [c]). Inasmuch as it is apparent the defendant has neither responded nor objected to the claimant's Request For The Production Of Documents, the instant motion is granted to the extent it seeks an order compelling a response to these demands.

To the extent the claimant requests a trial by jury, the motion is denied. There is no right to a jury trial in the Court of Claims (Court of Claims Act § 12 [3]; Graham v Stillman, 100 AD2d 893 [1984]).

Accordingly, it is hereby

ORDERED that the claimant's motion is denied as unnecessary to the extent it seeks an order compelling a response to his Request For Admissions and granted to the extent it seeks an order compelling the defendant to respond to his Request For Production Of Documents, and the defendant is

ORDERED to provide a response to the claimant's Request For Production Of Documents within thirty days of the date this Decision and Order is filed.

The motion is in all other respects denied.



August 4, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated May 20, 2008;
  2. Affidavit of Alvin Fulton, Jr. sworn to May 20, 2008 with exhibit;
  3. Affirmation of Glenn C. King dated June 16, 2008 with exhibit;
  4. Objection of Alvin Fulton, Jr., dated June 17, 2008 with exhibit;
  5. Claimant's request for admissions dated April 8, 2008;
  6. Claimant's request for production of documents dated February 23, 2008.

[2]. Additionally, CPLR 3123 requires that the response be sworn. The response served by the defendant was unsworn.