New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2009-009-002, Claim No. 109335, Motion Nos. M-75589, M-75633


Synopsis


Claimant’s motions for penalties and sanctions with regard to his discovery demands were both denied.

Case Information

UID:
2009-009-002
Claimant(s):
GEORGE HARRIS
Claimant short name:
HARRIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109335
Motion number(s):
M-75589, M-75633
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
GEORGE HARRIS, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Thomas M. Trace, Esq.
Senior Attorney,Of Counsel.
Third-party defendant’s attorney:

Signature date:
March 4, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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 motions:
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 issues.

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. 2006-044-518).[1]

Accordingly, claimant’s motion, which seeks penalties based upon an alleged unreasonable denial of his request for admissions, prior to trial, must be denied.

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 state.”

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.

March 4, 2009
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.