New York State Court of Claims

New York State Court of Claims

CANTEY v. THE STATE OF NEW YORK, #2008-030-540, Claim No. 114505, Motion No. M-75139


Motion to compel answers to interrogatories by inmate claimant proceeding pro-se denied without prejudice. Unclear when interrogatories served on State, and same were likely served before issue was joined by service of an answer. Claim alleges claimant tripped, fell and suffered personal injuries because of negligent failure by escorting court officer to utilize proper techniques for rear hand-cuffed individual.

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
July 8, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for an order

compelling a response to interrogatories brought pursuant to Civil Practice Law and Rules


1,2 Notice of Motion for an Order Compelling 1st and 2nd Interrogatories pursuant to CPLR 3124; Supporting Affidavit for Order Compelling 1st 2nd Interrogatories by Theodore Cantey, Claimant and attached exhibits

3,4 Filed papers: claim, answer

Theodore Cantey alleges in his claim that on September 18, 2006 defendant’s agents caused him to trip, fall and suffer personal injuries because of their negligent failure to utilize proper techniques for escorting an individual who is rear hand-cuffed. Specifically, when a court officer escorted Mr. Cantey - who was rear hand-cuffed at the time - to a court appearance from the holding area, he tripped and fell on the first of three to four steps, receiving a contusion on the right side of his eye.

The claim herein was filed on November 19, 2007 and, according to an affidavit of service filed with the claim, served on the Attorney General’s Office in November 2007 as well.[1] Issue was joined by the service of an answer on or about December 26, 2007.

In an affidavit of service sworn to on December 10, 2007, filed in the clerk’s office on December 19, 2007 with the first set of interrogatories that are dated December 10, 2007, claimant indicates that same were served on defendant on a day in November 2007, however the date is illegible. In an affidavit of service filed in the clerk’s office on February 5, 2008 with a second set of interrogatories claimant indicates that he served same on the Court - not the Defendant - on February 1, 2008.

The copies of the interrogatories included as attachments to this motion contain additional conflicting information. The first set is avowed to have been served on the defendant on an unspecified day in October 2007; the second set contains no date of service. [See Affidavit of Service sworn to October 2, 2007 and “2 set of interrogatories” attached to motion papers]. An additional affidavit of service apparently attesting to service of the present motion, and sworn to on June 17, 2008, contains no date of service and describes the documents served as “1st & 2nd set Interrogatories Motion for Compelling CPLR 3124.”

The result of this confusion is that it is unclear if the defendant was served with either of these sets of interrogatories and if served, when. Certainly, the fact that this motion has been submitted without opposition suggests that the motion, too, has not been served.

Civil Practice Law and Rules § 3131, regarding the “scope of interrogatories”, provides:

“Interrogatories may relate to any matters embraced in the disclosure requirement of section 3101 and the answers may be used to the same extent as the depositions of a party. Interrogatories may require copies of such papers, documents or photographs as are relevant to the answers required, unless opportunity for this examination and copying be afforded.”

In terms of the timing for service of interrogatories, Civil Practice Law and Rules §3132


“After commencement of an action, any party may serve written interrogatories upon any other party. Interrogatories may not be served upon a defendant before that defendant’s time for serving a responsive pleading has expired, except by leave of court granted with or without notice. A copy of the interrogatories and of any order made under this rule shall be served on each party.”

The foregoing has been interpreted to mean that if a claimant wants to “re-order” the priority granted to defendant - similar to the defendant’s priority on depositions [see Civil Practice Law and Rules §3106] - claimant must make a motion. This is because: “The priority for serving interrogatories is expressed . . . [tangentially] in CPLR 3132. A defendant may serve interrogatories on the plaintiff immediately after being served with the complaint or obtaining notice of the action. If the plaintiff wants to serve interrogatories on a given defendant before the time for serving a responsive pleading has expired, the plaintiff needs a court order.” See McKinney’s CPLR Commentaries C3132.1, Page 621. The defendant’s answer in the Court of Claims must be served within forty (40) days of service of the claim. 22 NYCRR §206.7(a).

At this point, issue has been joined and the forty (40) days have passed. When these various documents were (or were not) served on defendant issue had not been joined or, the time within which to serve a responsive pleading had not expired. In any event, a motion to compel is premature, given the lack of clarity as to when the documents were served, and upon whom. If claimant chooses to again try to utilize interrogatories as a disclosure device, and once interrogatories are properly served, defendant is reminded that it has a time limit within which to respond, even if it is to object to the questions posed. See Civil Practice Law and Rules §3130.

Claimant’s motion is denied without prejudice.

July 8, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The portion of the affidavit of service where the actual date of service is typed is illegible.