Claimant's motion for reargument of decision denying sanctions for discovery violations granted in part, and upon reargument, the Court adheres to its prior decision. Although Court may have misapprehended that defendant's failure to respond to claimant's repeated discovery demands did not constitute wilful failure to disclose under CPLR 3126, the record did not support striking defendant's affirmative defenses, as claimant had sought.
|Claimant short name:||VEGA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||LUIS VEGA, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||March 4, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained when he was assaulted in the recreation yard at Green Haven Correctional Facility (CF) on July 27, 2019. In a Decision and Order dated November 30, 2020, the Court granted in part claimant's motion to compel responses to certain discovery demands and denied that part of claimant's motion which sought to compel defendant to respond claimant's notice to admit and to sanction defendant for its failure to disclose (see Vega v State of New York, UID No. 2020-038-575 [Ct Cl, DeBow, J., Nov. 30, 2020]). In a document styled as a "Reply Affidavit," claimant now moves to reargue the Court's November 30, 2020 Decision and Order. Defendant has defaulted in responding to the motion.
The CPLR provides that "[a] motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] ). Here, claimant asserts that "[t]he Court ruled that claimant had failed to demonstrate that he served the demands on the defendant prior to filing the motion to compel" and he attaches copies of certified mail, return receipt requested (CMRRR) showing that certified mail was received by the Court of Claims and the Office of the Attorney General on September 8, 2020 (Vega Reply Affidavit, ¶ 2; Attached CMRRR Receipts). Claimant argues that he sought a response regarding defendant's "knowledge of claimant['s] request and court order (sentencing transcripts) to place claimant into protective custody and awareness of prior inmate on inmate assaults in Green Haven [CF] recreation yard" and that defendant "willfully failed to answer claimant's demands," did not respond to the motion and thus "had not argued that claimant failed to serve the discovery demand prior to the filing of the motion" (id., ¶¶ 3-4). Claimant argues that defendant did not want "to admit [that] claimant should not have been in general population with a court order" and "about prior incidents of inmate on inmate assaults," and that defendant "failed to properly implement their own prison policy and regulation," which jeopardized "the safety and security of the facility" (id, ¶¶ 4A-B, 5).
On this motion for leave to reargue, and contrary to claimant's assertion, the Court did not find in its November 30, 2020 Decision and Order that claimant had failed to demonstrate that he had served his discovery demands. Rather, the Court concluded that claimant had demonstrated that he served his demand for documents and notice to admit upon defendant "on three different occasions in January and March 2020" and that defendant, in not responding to the motion, failed to argue that it had not been served (Vega v State of New York, UID No. 2020-038-575 [Ct Cl, DeBow, J., Nov. 30, 2020]).(1) Moreover, claimant does not appear to argue that the Court had overlooked or misapprehended any mater of fact or law in denying that part of claimant's motion that sought to compel defendant to respond to claimant's notice to admit. Even assuming that claimant had made such an argument, the Court would deny that part of claimant's motion inasmuch as a notice to admit is self-effectuating where a party fails to respond to such a demand within 20 days and CPLR 3124 prohibits a motion to compel a response to that discovery device.
However, to the extent that claimant argues that Court overlooked or misapprehended any matter of fact or law in concluding that defendant did not wilfully fail to answer claimant's discovery demands, the Court agrees. Here, the record established that defendant failed to respond to claimant's repeated discovery demands - served three times in January and March 2020 before the motion was brought in June 2020 - which evidences a pattern of noncompliance, from which it can be inferred that defendant wilfully failed to make required disclosure (see VanEtten Oil, Co., Inc. v Exotica Flora & Fauna, Ltd., 78 AD3d 1438, 1439 [3d Dept 2010]). Accordingly, the Court will grant reargument, but will adhere to its prior decision for the reasons that follow.
In his prior motion, claimant sought as a sanction the striking of portions of defendant's answer, specifically, all three of the affirmative answers asserted therein (see Notice of Motion, dated June 3, 2020, at pg. 2). "The nature and penalty to be imposed [by a court] pursuant to CPLR 3126 rests within the discretion of [the Court]" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2d Dept 2010]). While a court may impose the sanction of striking a pleading, "[s]trong public policy, however, favors the resolution of cases on the merits" (id.). Thus, "[i]t is well settled that the drastic remedy of striking an answer [as a penalty pursuant to CPLR 3126] is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious or in bad faith" (Harris v City of New York, 211 AD2d 663, 664 [2d Dept 1995]). Here, although it can be inferred that defendant's actions in failing to respond to three consecutive discovery demands amounted to wilful conduct, the record does not support a finding "that defendant 'was guilty of a deliberatively evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation' " through striking the pleading (Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438, 438 [2d Dept 2000], quoting Forman v Jamesway Corp., 175 AD2d 514, 515 [3d Dept 1991]). The Court's decision should not be read as countenancing the repeated failure of defendant to respond to claimant's discovery demands. Indeed, the CPLR - and common decency for that matter - dictates that defendant is required to respond to claimant's discovery demands, even if merely to acknowledge that the demands were received. Instead, claimant's discovery demands - and his motions, for that matter - were met with nothing but dead silence. However, based upon the record and the relief sought, it is beyond the Court's discretion to grant that part of claimant's motion that seeks sanctions.
Accordingly, it is
ORDERED, that claimant's motion number M-96342 is GRANTED IN PART, and upon reargument, the Court adheres to its November 30, 2020 Decision and Order.
March 4, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Reply affidavit of Luis Vega, sworn to December 10, 2020;
2. Affidavit of Service of Luis Vega, sworn to December 10, 2020;
3. Decision and Order in Vega v State of New York, UID No. 2020-038-575 (Ct Cl, DeBow, J.,
November 30, 2020), and the papers considered therein;
4. Decision and Order in Vega v State of New York, UID No. 2020-038-526 (Ct Cl, DeBow, J.,
February 27, 2020).
1. To be sure, the Court did previously conclude that claimant had failed to serve discovery demands prior to filing of a previous motion to compel (see Vega v State of New York, UID No. 2020-038- 575 [Ct Cl, DeBow, J., Nov. 30, 2020], citing Vega v State of New York, UID No. 2020-038-526 [Ct Cl, DeBow, J., Feb. 27, 2020]).