Opinion
# 2012-041-032 Claim No. 118577 Motion No. M-80951
04-04-2012
BUTLER v. THE STATE OF NEW YORK
Synopsis
Defendant's motion for a protective order with respect to claimant's request for admissions is granted in part and denied in part where several of the requested admissions are beyond scope of a notice to admit. Case information
UID: 2012-041-032 Claimant(s): GARY L. BUTLER Claimant short name: BUTLER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118577 Motion number(s): M-80951 Cross-motion number(s): Judge: FRANK P. MILANO Claimant's attorney: NONE HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Douglas R. Kemp, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: April 4, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves for a protective order with respect to claimant's request for admissions in this action which, as far as can be determined, alleges that defendant failed to appropriately pay the inmate-claimant for his work in the Clinton Correctional Facility Food Service Program. Claimant has not opposed the motion.
Defendant asserts that it is entitled to a protective order because the notice to admit "(1) pertain[s] to the core legal issues in this case, (2) relate[s] to a separate CPLR Article 78 proceeding which has no bearing on the current claim [and] (3) seek[s] information which is peculiarly within the knowledge of claimant."
CPLR § 3123, entitled, "[a]dmissions as to matters of fact, papers, documents and photographs," provides at relevant part as follows:
"(a) Notice to admit; admission unless denied or denial excused. At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or 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. Copies of the papers, documents or photographs shall be served with the request unless copies have already been furnished. Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters."
"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. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper . . . Also, the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial" (DeSilva v Rosenberg, 236 AD2d 508, 509 [2d Dept 1997]; see Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770 [2d Dept 2011]).
Finally, a request for information which is within the knowledge of the proponent rather than the respondent is not properly included in a notice to admit facts (Matter of City of New York (Fifth Ave. Coach Lines), 38 Misc 2d 201, 204 [Sup Ct, NY County 1963]).
The Court has reviewed claimant's notice to admit and finds as follows: Requests numbered 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 15 and 16 seek to "cover ultimate conclusions, which can only be made after a full and complete trial." Requests numbered 4, 8, 14 and 17 are within the knowledge of the claimant rather than the defendant and are not properly included in a notice to admit facts. Defendant is granted a protective order with respect to these requests.
The defendant is directed to answer requests numbered 10, 18 and 19.
April 4, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed January 20, 2012;
2. Affirmation of Douglas R. Kemp, dated January 19, 2012, and annexed exhibits.