New York State Court of Claims

New York State Court of Claims

KAMINSKI v. THE STATE OF NEW YORK, #2009-041-039, Claim No. 115669, Motion No. M-76976


Defendant’s motion for a protective order with respect to claimant’s notice to admit, comprised of 11 pages and 105 numbered paragraphs, is granted.

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:
New York State Attorney GeneralBy: G. Lawrence Dillon, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for a protective order with respect to claimant’s notice to admit (CPLR 3123) in this action which, as far as can be determined from the confusing allegations of the claim, seeks recovery for perceived conspiratorial conduct on the part of the New York State Division of Parole to confine claimant and to deprive claimant of certain documents. CPLR 3123 provides at relevant part as follows:
“At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry. Copies of the papers, documents or photographs shall be served with the request unless copies have already been furnished.”
Defendant correctly points out that claimant has failed to provide copies of any of the documents as to which admissions are sought.

CPLR 3103 (a) prescribes when the court may issue a protective order:
“The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”
The seminal case in considering whether a protective order should issue with respect to a notice to admit is Nader v General Motors Corp. (53 Misc 2d 515, 516 [Sup Ct, New York County 1967], affd 29 AD2d 632 [1st Dept 1967]), in which the court found as follows:
“The subject notice consists of more than 300 separate items, subdivided in 44 paragraphs of a 29-page, single-spaced typewritten document. Even a cursory examination of these papers establishes that, as a whole, the notice in question is patently burdensome, unnecessarily prolix, and unduly protracted.

Likewise, it is obvious that plaintiff's notice to admit violates the scope and intendment of CPLR 3123 (formerly Civ. Prac. Act, § 322), which governs the application for and use of such admissions. The purpose of the notice to admit procedure is not to obtain information in lieu of other disclosure devices, such as the taking of depositions and examinations before trial, but is intended only to eliminate from the issues in litigation matters which will not really be in dispute at the trial. Thus, unlike many of the items set forth in plaintiff's notice, requests for admissions are not intended to cover ultimate conclusions which can only be made after a full and complete trial.”
Similarly, in Falkowitz v Kings Highway Hospital (43 AD2d 696 [2d Dept 1973]), the court issued a protective order where:
“The notice to admit consists of 33 paragraphs and consumes more than six pages (closely printed) of the record on appeal. Even a cursory examination of it establishes that, as a whole, it is patently burdensome, unnecessarily prolix and unduly protracted.”
The Court finds that the claimant’s notice to admit, comprising 11 pages and 105 numbered paragraphs, is “patently burdensome, unnecessarily prolix and unduly protracted.” Additionally, the notice to admit fails to include copies of documents for which admissions are sought and, finally, seeks admissions as to “ultimate issues at the core of the dispute” (Sagiv v Gamache, 26 AD3d 368, 369 [2d Dept 2006]).

Defendant’s motion for a protective order is granted. The notice to admit is stricken.

September 30, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Defendant’s Notice of Motion, filed July 20, 2009;
  2. Affirmation of G. Lawrence Dillon, dated July 20, 2009, and annexed exhibits;
  3. Affidavit of Thomas Kaminski, sworn to July 21, 2009;
  4. Letter of Thomas Kaminski, dated August 1, 2009.