New York State Court of Claims

New York State Court of Claims
BROWER v. THE STATE OF NEW YORK, # 2021-038-564, Claim No. 136401, Motion No. M-97527


Motion to compel response to discovery demands denied as premature. Demands were not served on defendant prior to filing and service of motion to compel.

Case information

UID: 2021-038-564
Claimant(s): BROWER, J #17-A-3726
Claimant short name: BROWER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 136401
Motion number(s): M-97527
Cross-motion number(s):
Claimant's attorney: BROWER, J., Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Suzette Corinne Merritt, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 10, 2021
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that defendant's agents failed to protect him from an assault by another incarcerated person at Green Haven Correctional Facility (CF) on January 2, 2021. Claimant now moves to compel defendant to respond to certain discovery demands. Defendant opposes the motion.

Claimant seeks an order compelling defendant to comply with a demand for document discovery seeking documentation related to the alleged assault and resulting injuries - including reports, written statements, photographs, and disciplinary hearing tapes - and a notice to admit regarding admissions of negligence and deliberate indifference by defendant's agents and employees at Green Haven CF (see Notice of Motion, attachments [Claimants Demand for Discovery, dated July 8, 2021], [Claimants Demand for Admission, dated July 8, 2021]). Defendant opposes the motion on the ground that it was never served with the subject discovery demands, and argues that the motion must therefore be denied as premature (see Merritt Affirmation in Opposition, 2-5).

The CPLR authorizes a motion to compel disclosure only "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or [discovery] order" (CPLR 3124). Here, claimant's submissions indicate that the two subject discovery demands, which are both dated July 8, 2021, were served on defendant for the first time in connection with the instant motion (see Notice of Motion, dated July 8, 2021; see also id., attachments [Claimants Demand for Discovery, dated July 8, 2021], [Claimants Demand for Admission, dated July 8, 2021], [Brower Affidavit of Service, sworn to July 8, 2021]), and claimant makes no argument in his submissions, nor has he supplied any documentary evidence, that the demands were served on defendant at any time prior to the filing of this motion. As noted above, defendant affirms in its opposition papers that it was not served with the discovery demands prior to the filing and service of this motion. Claimant has failed to demonstrate that the instant motion was preceded by service of the subject discovery demands and that defendant failed to adequately comply with the requests, and thus the motion to compel must be denied as premature (see Hernandez v State of New York, UID No. 2019-015-206 [Ct Cl, Collins, J., Dec. 11, 2019]; Keitt v State of New York, UID No. 2018-038-532 [Ct Cl, DeBow, J., Apr. 6, 2018]; Perez v State of New York, UID No. 2016-018-729 [Ct Cl, Fitzpatrick, J., July 20, 2016]).(1)

Accordingly, it is

ORDERED, that claimant's motion number M-97527 is hereby DENIED.

December 10, 2021

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

1. Claim No. 136401, filed May 24, 2021;

2. Verified Answer, filed June 9, 2021;

3. Notice of Motion, dated July 8, 2021, with attachments;

4. Affirmation of Suzette Corinne Merritt, AAG, in Opposition to Claimants Motion, dated July 20, 2021.

1. Claimant's submissions also include a response to defendant's Verified Answer in which claimant purportedly "moves to strike" the First, Sixteenth, and Seventeenth Affirmative Defenses asserted in the Verified Answer (Notice of Motion, attachments [Reply Affidavit, dated July 8, 2021]). However, claimant has not sought that relief in his notice of motion (see Notice of Motion, dated July 8, 2021; see also CPLR 2214 [a]), and thus the Court cannot consider that request in connection with the instant motion.