New York State Court of Claims

New York State Court of Claims
MCMILLAN v. STATE OF NEW YORK, # 2021-058-062, Claim No. 136264, Motion No. M-97397


Motion for protective order against Claimant's notice to admit granted.

Case information

UID: 2021-058-062
Claimant short name: MCMILLAN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 136264
Motion number(s): M-97397
Cross-motion number(s):
Judge: Catherine E. Leahy-Scott
Claimant's attorney: Timothy McMillan, Pro Se
Defendant's attorney: Letitia James, New York State Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 19, 2021
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant Timothy McMillian, an incarcerated individual, filed this Claim on April 19, 2021 seeking damages for personal injuries suffered at Mid-State Correctional Facility (Mid-State) on or about January 16, 2020. Specifically, Claimant contends he slipped and fell on uneven, cracked pavement that was covered with snow and ice as he was walking to the mental health unit at Mid-State (see Affirmation of Christopher J. Kalil, Esq [Kalil Aff]., Ex A [Claim] 5-6). Claimant also alleges he received inadequate medical treatment following the incident (see id. 14). Defendant filed an answer to the Claim on May 11, 2021.

Defendant now moves for a protective order against Claimant's notice to admit, sworn to on September 19, 2021 (see Kalil Aff, Ex C [Notice to Admit]). Claimant opposes the motion.

CPLR 3123 (a) states that "a party may serve upon any other party a written request for admission by the latter 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." "The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial" (DeSilva v Rosenberg, 236 AD2d 508, 508 [2d Dept 1997]). "[A] notice to admit may not be utilized to request admission of material issues or ultimate or conclusory facts" (Fetahu v New Jersey Tr. Corp., 167 AD3d 514, 515 [1st Dept 2018] [internal quotation marks and citations omitted]; DeSilva, 236 AD2d at 509 [a notice to admit "is not intended to cover ultimate conclusions, which can only be made after a full and complete trial"]). Moreover, a notice to admit cannot seek "legal conclusions on material issues" (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 453 [1st Dept 1995]). Thus, "[a] notice to admit which goes to the heart of the matters at issue is improper" (DeSilva, 236 AD2d at 509). Additionally, a request for information which is within the knowledge of the proponent rather than the responding party is not properly included in a notice to admit facts (see Butler v State of New York, UID No. 2012-041-032 [Ct Cl, Milano, J., Apr. 4, 2012]; Matter of City of New York [Fifth Ave. Coach Lines], 38 Misc 2d 201, 204 [Sup Ct, NY County 1963]).

Claimant's 21 requests to admit are improper. In particular, request nos. 3, 4, 5, 13, 15, 16, and 21 seek to have Defendant admit material issues or ultimate facts as they relate to the condition of the sidewalk at issue (requests nos. 3-5, 16) and Defendant's notice of same (request no. 21), Claimant's injury as a result of the incident (request no. 13), and the appropriateness of the care Claimant received as a result of the incident (request no. 15). Request Nos. 11, 17, 18, 19, and 20 are improper as they each seek legal conclusions as to Defendant's retention of sick call slips (request no. 11) and Defendant's duty of care to incarcerated individuals (request nos. 17, 18, 19, 20). Claimant's remaining requests, numbers 1, 2, 6, 7, 8, 9, 10, 12, and 14 are all matters of which Claimant has first-hand knowledge.

Accordingly, it is hereby:

ORDERED Defendant's Motion No. M-97397 is GRANTED and Defendant is under no obligation to respond to Claimant's Notice to Admit sworn to on September 19, 2021.

November 19, 2021

Albany , New York

Catherine E. Leahy-Scott

Judge of the Court of Claims

The Court considered the following papers in deciding this motion:

(1) Notice of Motion, dated October 4, 2021.

(2) Affirmation of Christopher J. Kalil, Esq., in Support of Motion, dated October 4, 2021, with attachments.

(3) Claimant's Response to Notice of Motion, dated October 8, 2021.

(4) Claimant's Response to Affirmation in Support of Protective Order, dated October 8, 2021 with attachments.