Opinion
# 2017-038-560 Claim No. 128820 Motion No. M-90174
09-11-2017
RASHAD SCOTT v. THE STATE OF NEW YORK
RASHAD SCOTT, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General
Synopsis
Defendant's default in responding to motion to compel answers to interrogatories is construed as a concession that claimant's interrogatories were unobjectionable, and claimant's motion is granted. That part of claimant's motion seeking sanctions is denied as claimant has not demonstrated that defendant's failure to respond to interrogatories was intended to prolong or delay resolution of the claim.
Case information
| UID: | 2017-038-560 |
| Claimant(s): | RASHAD SCOTT |
| Claimant short name: | SCOTT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128820 |
| Motion number(s): | M-90174 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | RASHAD SCOTT, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 11, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for lost property. Claimant moves for an order compelling defendant to respond to interrogatories and for sanctions under CPLR 3126 and 22 NYCRR § 130-1.1 (c). Defendant has not filed any papers in opposition to the motion.
Claimant's motion was originally returnable on May 3, 2017. On that date, the Assistant Attorney General (AAG) assigned to defend the motion requested a four-week adjournment of the return date (see Rubinstein Correspondence, dated May 3, 2017). Notwithstanding that the request was tardy because it was not made until after answering affidavits were required to have been served (see CPLR 2214 [b]), the request was granted and the motion return date was adjourned to June 7, 2017. Notwithstanding that the Court granted the AAG's tardy request and adjourned the return date (Schulman Correspondence, dated May 4, 2017), no papers on the motion were submitted by defendant.
Defendant is advised that all requests for adjournments of motion return dates must be requested prior to the date for service of answering affidavits, and any untimely request will not be considered absent a showing of good cause for the delay.
That branch of claimant's motion seeking an order compelling defendant to answer claimant's interrogatories will be granted. Claimant served on defendant interrogatories dated January 26, 2017 containing 15 questions (see Scott Affidavit, ¶ 2; Exhibit A-1). Having received no response by the end of March 2017, claimant filed the instant motion. Inasmuch as defendant has not opposed the motion - of which it was clearly aware - its default will be construed as a concession that the interrogatories did not seek information that is privileged under CPLR 3101 and that the interrogatories were not palpably improper (see Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]; see CPLR 3133 [a]). Accordingly, defendant will be directed to answer claimant's interrogatories, to the extent it has not already done so.
That branch of claimant's motion seeking sanctions due to defendant's failure to answer the interrogatories will be denied. Penalties for failure to comply with discovery demands may be granted when a party wilfully fails to disclose information that the Court finds ought to have been disclosed (see CPLR § 3126). As pertinent to this motion, financial sanctions may be imposed upon a party or attorney in a civil action or proceeding who engages in frivolous conduct, the primary purpose of which is to delay or prolong resolution of the litigation (see 22 NYCRR § 130-1.1 [a]; [c] [2]). Claimant's interrogatories are dated January 26, 2017, and he indicates that they were served upon defendant before the end of January 2017. This motion is dated March 22, 2017. Clearly, defendant has not shown that it responded to the interrogatories within 20 days of their service (see CPLR 3133 [a]), which the Court certainly does not countenance. However, claimant has not demonstrated that defendant wilfully failed to answer claimant's interrogatories, or that it withheld any response primarily to prolong or delay the prosecution of this claim. Thus, an award of sanctions would not be appropriate at this time.
Accordingly, it is
ORDERED, that claimant's motion number M-90174 is GRANTED IN PART, to the extent that defendant is directed to respond to claimant's interrogatories, dated January 26, 2017, to the extent that it has not already done so; and it is further
ORDERED, that claimant's motion number M-90174 is DENIED in all other respects.
September 11, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 128820, filed November 17, 2016; (2) Verified Answer, filed January 20, 2017; (3) Notice of Motion, dated March 22, 2017 and filed March 31, 2017; (4) Affidavit of Rashad Scott in Support of Motion to Compel, sworn to March 22, 2017, with Exhibit A-1; (5) Affidavit of Service, sworn to March 22, 2017; (6) Correspondence of Heather R. Rubinstein, AAG, dated May 3, 2017; (7) Correspondence of Nancy Schulman, Principal Law Clerk, dated May 4, 2017.