Claimant's motion for a protective order denied. Claimant's responses to certain interrogatory questions rendered the motion moot with regard to those questions; claimant's conclusory assertions failed to persuade the Court to grant claimant's motion with regard to the remaining questions. Defendant's motion to compel responses to its document demands granted on default. Defendant demonstrated that it had served document demands and that claimant did not respond thereto.
|Claimant(s):||JAMES C. PINE|
|Claimant short name:||PINE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-96291, M-96373|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JAMES C. PINE, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 11, 2021|
|See also (multicaptioned case)|
Claimant pro se filed this claim seeking compensation for injuries suffered due to the alleged negligence of the Greene County District Attorney and the Greene County Clerk in failing to amend a felony indictment that erroneously named claimant as the defendant. Claimant moves for a protective order limiting defendant's interrogatories (Motion No. M-96291). Defendant opposes claimant's motion and has filed a motion seeking to compel claimant to respond to its discovery demands (Motion No. M-96373). Claimant has defaulted in responding to defendant's motion to compel.
On May 10, 2019, defendant served claimant with combined discovery demands seeking, as pertinent to these motions, documents and memoranda related to collateral source payments, written statements made by defendant's agents regarding the alleged occurrences in the claim, and certain documents (see Calabrese Affirmation, Exhibit B [Combined Discovery Demands]). After claimant's examination before trial was scheduled and canceled because claimant refused to appear, defendant served claimant with a notice of interrogatories on November 4, 2020 (see id., Exhibit D [Notice of Interrogatories]).
Claimant moves for a protective order limiting defendant's interrogatories to
"pertinent, pedigree matters submitted in support of Claimant's prior and present papers filed in the case at bar, and exhibits now on file with the Court, and allow any protectional [sic] relief under color of law, including those protected by HIPPA [sic] et.al., be used while composing any allowable questions the Defendant may raise at or pre-trial"
(Notice of Motion to Dismiss Interrogatories as Untimely RPTL§ 702, sworn to by James C. Pine Nov. 18, 2020, at pg.1). Claimant argues that defendant is "abusing it's [sic] authority in seeking an open-ended license to extract non-essential information from the Claimant" (id., at pg.2). Claimant also appears to argue that defendant's interrogatories were untimely (see id.). Lastly, claimant requests that the Court admit "into the Record any prior exhibits or Affidavits in the above entitled claim" (id., at pg.1).
Defendant opposes the motion, arguing that "the relief requested is without merit" inasmuch as defendant "is entitled to make demands upon claimant and claimant is required to respond," and that claimant's remedy is to oppose disclosure in his response (Calabrese Affirmation in Opposition, ¶ 8). Defendant also argues claimant's motion is "without merit as it is unclear what exactly he wishes to protect as he has failed to respond to any demands made upon him" (id., ¶ 10).(1) Lastly, defendant argues that claimant's arguments about the timeliness of the notice of interrogatories lacks merit because "[t]he Court has been closely monitoring this matter and has continued to extend discovery deadlines, as claimant has continually failed to participate in discovery" (id., ¶ 9).
Following the filing and service of claimant's motion and defendant's opposition papers, claimant filed and served a reply to defendant's notice of interrogatories, in which he replied to all of the interrogatory questions posed, with the exception of questions 1 through 5 (see Reply to Notice of Interrogatories, filed Jan. 25, 2021; Correspondence of the Hon. W. Brooks DeBow, dated Mar. 4, 2021).
CPLR § 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." However, a court possesses the discretion to "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" (CPLR 3103 [a]; see Matter of U.S. Pioneer Elecs. Corp. [Nikko Elec. Corp. of Am.], 47 NY2d 914, 916  ["The determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3103 (subd. [a]) rests in the sound discretion of the court to which application is made"]).
As an initial matter, claimant's responses to interrogatory questions 6 through 15 has rendered claimant's motion moot with regard to those questions. As for interrogatory questions 1 through 5, claimant has offered nothing more than conclusory assertions that disclosure should be prohibited because it violates HIPAA and is irrelevant and thus has not persuaded the Court that it should exercise its discretion to limit disclosure. In the Court's view, interrogatory questions 1 through 5 do not seek privileged information and appear to be relevant to defendant's defense of the action. Moreover, the Court finds no merit to claimant's assertions that the notice of interrogatories was untimely inasmuch as the Court's July 29, 2019 Scheduling Order had no deadline for the service of a notice of interrogatories and the Note of Issue and Certificate of Readiness had not been filed at the time that defendant served its notice of interrogatories on November 4, 2020.(2) Lastly, claimant's request to admit into the record prior exhibits and affidavits will be denied inasmuch as the proper procedure is to offer any exhibits at trial. Accordingly, claimant's motion will be denied.
Turning to defendant's motion to compel, defendant seeks an order compelling claimant to respond to "all pending document demands" (Calaberse Affirmation (M-96373], ¶ 15). As noted above, the CPLR requires "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]), although privileged material may be shielded from disclosure upon an objection by a person entitled to assert the privilege (see CPLR 3101 [b]). A motion for a court order compelling discovery is authorized only "[i]f a person fails to respond or comply with any request, notice, interrogatory, demand, question or order" (CPLR 3124).
Here, defendant's submission establishes prima facie that claimant was served with document demands (see id., ¶ 6; id., Exhibit B) and that claimant has not responded to those demands (see id., ¶ 12). Claimant has not responded to the motion and has not disputed defendant's showing. Accordingly, claimant is directed to respond to defendant's outstanding document demands within twenty (20) days of the filing of this Decision and Order. To the extent that defendant seeks sanctions - including the dismissal of the claim - pursuant to CPLR 3126 for claimant's willful failure to respond to defendant's document demands (see Calabrese Affirmation, ¶ 15), the Court will exercise its discretion at this juncture and decline to order such relief, without prejudice.
Accordingly, it is
ORDERED, that claimant's motion number M-96291 is DENIED;
ORDERED, that defendant's motion number M-96373 is GRANTED IN PART and claimant shall, within twenty (20) days of the filing of this Decision and Order, respond to defendant's outstanding document demands; and it is further
ORDERED, that defendant's motion number M-96373 is DENIED in all other respects.
March 11, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 132813, filed March 21, 2019;
2. Notice of Motion to Dismiss Interrogatories as Untimely RPTL§ 702 (M-96291), sworn to by
James C. Pine on November 18, 2020, with Attachment (Certificate of Readiness, dated
November 18, 2020);
3. Affirmation of Christina Calabrese, AAG in Opposition (M-96291), dated January 5, 2021;
4. Notice of Motion (M-96373), dated January 14, 2021;
5. Affirmation of Christina Calabrese, AAG (M-96373), dated January 14, 2021, with Exhibits
6. Affidavit of Service of Amber J. Grant (M-96373), sworn to January 14, 2021;
7. Reply to Defendant's Notice of Interrogatories, sworn to by James C. Pine on January 13,
2021, filed January 25, 2021;
8. "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims,
dated January 12, 2021;
9. Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated March 4,
10. Scheduling Order, dated July 29, 2019.
1. Defendant also argues that claimant's failure to append a copy of the interrogatories requires summary denial of the motion (see Calabrese Affirmation in Opposition [M-96291], ¶ 8). However, defendant's submission of the interrogatories with its motion to compel (see Calabrese Affirmation [M-96373], Exhibit D), which is being decided with claimant's motion for a protective order, completes the record.
2. Claimant filed with this motion a Certificate of Readiness (see Certificate of Readiness, dated Nov. 18, 2020). At the time that the motion was made, the deadline for the Note of Issue and Certificate of Readiness was December 4, 2020, which was subsequently extended to April 30, 2021 (see Calabrese Affirmation, Exhibit E).