Claimant has brought a motion (M-75589) seeking a penalty from the defendant
for the “unreasonable denial” of claimant’s previously served
“Request for Admissions”. Specifically, claimant requests the Court
to deem this “Request for Admission” to be “admitted” by
the defendant, and for the reasonable expenses incurred by claimant in bringing
this motion. Subsequently, claimant brought a second motion (M-75633) for an
order pursuant to CPLR § 3126 imposing sanctions against the defendant for
failing to participate in discovery and thus delaying the trial of this claim.
Specifically, claimant contends that the defendant has refused to answer a
Deposition on Written Questions previously served by claimant authorized by CPLR
Rules 3108 and 3109.
The following papers were considered by the Court in connection with these
Notice of Motion, Affidavit, with Exhibits (M-75589) 1,2
Notice of Motion, Affidavit, with Exhibit (M-75633) 3,4
Answering Affirmation, with Exhibits (M-75589/M-75633) 5
As set forth in his first motion (M-75589), claimant had served a
“Request for Admissions” upon the Attorney General on or about
August 6, 2008. Defendant served a response to this request on or about August
22, 2008, stating that the requests were improper as no papers, documents,
and/or photographs were attached to the request. Defendant also stated that the
requests were improper as they sought admissions of contested facts and material
Pursuant to § 3123(a), a requested admission shall be deemed admitted when
the party to whom the request is directed fails to respond to the request within
20 days after service. In this particular matter, defendant did serve a timely
response. Even though claimant disagrees with the content of that response,
claimant has not satisfied the Court that he is entitled to have any or all of
his requests deemed admitted.
Furthermore, if claimant believes that the defendant unreasonably denied his
Request for Admissions”, his remedies are set forth in § 3123(c).
Under § 3123(c), claimant may move, immediately following trial, for an
order requiring the defendant to pay the reasonable expenses incurred by him in
proving at trial such matters that the defendant unreasonably refused to admit
(Green v State of New York
, Ct Cl, November 21, 2006, Schaewe, J., Claim
No. 110190, Motion No. M-72125, UID No.
Accordingly, claimant’s motion, which seeks penalties based upon an
alleged unreasonable denial of his request for admissions, prior to trial, must
In his second motion (M-75633), claimant seeks penalties against the defendant
for failing to respond to claimant’s “Notice of Taking Deposition on
Written Questions”. CPLR Rule 3108 specifically permits a deposition to
be taken on written questions “when the examining party and the deponent
so stipulate or when the testimony is to be taken without the
In this particular matter, defendant’s attorney, in his response to
claimant’s notice, advised the claimant that no stipulation had been
agreed upon for this purpose, and that no party was without the state. Based on
the foregoing, claimant’s “Notice of Taking Deposition on Written
Questions” falls outside the limited scope of Rule 3108 and therefore is
improper. This motion must also be denied.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-75589 and Motion No. M- 75633 are both hereby DENIED
in their entirety.