Opinion
# 2015-053-521 Claim No. 125892 Motion No. M-87183 Motion No. M-87184
12-02-2015
TROY McRAE v. STATE OF NEW YORK
TROY McRAE, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Timothy J. Flynn Assistant Attorney General
Synopsis
Claimant's motions to compel responses to notice to admit, for production of documents and to proceed as poor person and for appointment of counsel are denied.
Case information
| UID: | 2015-053-521 |
| Claimant(s): | TROY McRAE |
| Claimant short name: | McRAE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125892 |
| Motion number(s): | M-87183, M-87184 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | TROY McRAE, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Timothy J. Flynn Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 2, 2015 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Troy McRae, an inmate proceeding pro se, alleges in claim no. 125892 that he was subjected to harassment, threats, discrimination and was retaliated against while incarcerated at Collins Correctional Facility (Collins). Presently before the Court are Claimant's motions: motion no. M-87183 to compel Defendant to respond to Claimant's notice to admit; Claimant's motion no. M-87184 to compel Defendant to produce certain documents; and Claimant's motion to proceed as a poor person and for appointment of counsel. Defendant opposes Claimant's motions, which will be addressed separately.
Motion No. M-87183 to compel responses to Claimant's Notice to Admit.
Claimant moves pursuant to CPLR Rule 3124 to compel responses to his notice to admit. CPLR § 3123 (a) provides that a party may request another party to admit to the genuineness of a document, or the fairness of representation of a photograph, or the truth of any matter of fact about which there can be no substantial dispute. 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 (Voigt v Savarino Constr. Corp., 94 AD3d 1574 [4th Dept 2012]). "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]).
Here, Defendant served a timely response to Claimant's notice to admit and adequately responded to Claimant's items 1 through 6 and objected to Claimant's items 7 through 12 asserting that these latter items were improper as they were vague and sought admissions as to material and ultimate issues and called for legal conclusions in order to obtain information in lieu of other discovery devices. In his supporting affidavit, Claimant alleges that he sought admissions to establish that the actions of the Defendant were retaliatory, harassing and discriminatory and to establish that the Defendant had a history of misconduct against prisoners. I have reviewed Claimant's notice to admit and find that it improperly covers ultimate conclusions and goes to the heart of the matters at issue. As such, the notice to admit is improper.
Moreover, CPLR Rule 3124 does not authorize a motion to compel a response to a notice to admit. The penalty for unreasonably failing to respond to a proper notice to admit is governed by CPLR § 3123 (c) and is only considered during or following a trial, not by pre-trial motion.
Based on the foregoing, Claimant's motion no. M-87183 to compel responses to his notice to admit is denied in its entirety.
Claimant's Motion No. M-87184 to compel responses to his Notice for Production.
Claimant also moves pursuant to CPLR Rule 3124 to compel Defendant to respond to his demand for documents. Defendant served a timely response to Claimant's notice arguing that the demands were palpably improper and called for Defendant to breach privacy, confidentiality and security concerns, were overly broad and burdensome, and sought information neither relevant nor calculated to lead to the discovery of relevant information.
CPLR § 3101 (a) calls for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." Nevertheless, not all discovery is subject to disclosure. Trial courts must balance the need for such discovery against competing interests such as confidentiality, prejudice and relevance (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952 [1998]).
By demand number 1, Claimant seeks the disclosure of any and all grievances filed at Collins. This demand is palpably improper. Not only is it overly broad and burdensome but it calls for all types of grievances over an unspecified period of time submitted by anyone on any subject without any showing or indication that the grievance is relevant to the matters raised in the claim or will lead to the discovery of relevant information. Defendant has raised a valid objection to this demand. Claimant's motion to compel the production of all grievances is denied.
By demand number 2, Claimant seeks the full name, location and DIN number of "22 cell at the time of the incident, because he witnessed part of the incident." Claimant fails to identify the incident allegedly witnessed, the date of the allegedly witnessed incident, or to state what this inmate witnessed or how it is relevant to the prosecution of his claim (Thomas v State of New York, UID No. 2008-030-577 [Ct Cl, Scuccimarra, J., Nov. 14, 2008]). Claimant's motion to compel a response to demand number 2 is denied.
By demand number 3, Claimant seeks to compel the production of all grievances written up against correction officer (CO) D. Jones and M. Hessel between February 27 and April 27, 2015. This demand is palpably improper. Like demand number 1, it is overly broad and burdensome and requests any grievance filed against two correction officers without any showing or indication that any grievance (assuming any exist), is relevant to the matters alleged in the claim or will lead to the discovery of relevant information. Generally, "it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion" (Matter of Brandon, 55 NY2d 206, 210-211 [1982]). Here, Claimant is attempting to embark on a fishing expedition for mere complaints or grievances of any kind alleged against two correction officers without any showing of relevance.
Further, the personnel records of correction officers are confidential and are protected from disclosure under Civil Rights Law § 50-a, except with the written consent of the correction officer or as mandated by the Court upon a showing of a legitimate need for their disclosure based upon a showing that they are actually relevant to an issue in a pending matter (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145 [1999]). Here, Claimant has failed to show that any grievance or complaint against these correction officers as contained in their personnel records is actually relevant to a specific issue in his claim. Claimant's motion to compel a response to demand number 3 is denied.
Based on the foregoing, Claimant's motion no. M-87184 is denied in its entirety.
Motion to proceed as a poor person and for assignment of counsel.
Claimant attached to his claim a motion to proceed as a poor person and a request for assignment of counsel. This motion must also be denied. A motion to proceed as a poor person pursuant to CPLR § 1101 and a request for the appointment of counsel pursuant to CPLR §1102 (a) must be served on the attorney for the county in which the matter is triable (CPLR § 1101 [c]). While the affidavit attached to the claim in support of Claimant's motion indicates that a copy will be provided to the Erie County Attorney's Office, the affidavit of service attached to the claim fails to indicate service upon the appropriate county attorney. As a result, Claimant's motion is defective and must be denied on those grounds (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]).
The affidavit in support of Claimant's motion to proceed as a poor person and for the appointment of counsel was sworn to on October 16, 2014, approximately six months before April 2, 2015, the date claim no. 125892 was filed. Claimant apparently has used this affidavit for the filing of one or more prior motions and attempted to use it again for the present motion. In fact, an almost identical affidavit sworn to on October 16, 2014 was attached to Claimant's claim no. 125817 filed on March 18, 2015. Since this affidavit was obviously prepared for a different claim, it cannot be used to establish that the appropriate county attorney was served as required by CPLR § 1101 (c) with respect to the present claim.
In the event Claimant had complied with CPLR § 1101 (c) by serving the appropriate county attorney, his motion would still have to be denied. By order filed April 10, 2015, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50.00 to $20.00 pursuant to CPLR § 1101 (f). Inasmuch as there are no other fees or costs associated with the prosecution of this claim, Claimant's motion to proceed as a poor person would have to be denied.
Claimant's motion for assignment of counsel would similarly have to be denied. Although CPLR § 1102 grants to the Court discretion to assign an attorney, the Court of Appeals has previously ruled that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation and such a request is generally denied except in cases involving loss of liberty or grievous forfeiture (Matter of Smiley, 36 NY2d 433 [1975]). Claimant has failed to establish that his claim is sufficiently complex or that it involves such fundamental rights that the Court would be justified in appointing counsel to serve without compensation (Id. at 437-438; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000).
Claimant's request to proceed as a poor person and for the assignment of counsel is denied.
December 2, 2015
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following papers were considered by the Court: 1. Claimant's notice of motion to proceed as a poor person and for the appointment of counsel and affidavit of Troy McRae sworn to October 16, 2014; 2. Claimant's notice of motion no. M-87183 and affidavit of Troy McRae sworn to July 3, 2015, with annexed exhibits; 3. Claimant's notice of motion no. M-87184 and affidavit of Troy McRae sworn to July 3, 2015, with annexed exhibits; 4. Affidavit in opposition to Claimant's motion nos. M-87183 and M-87184 of Assistant Attorney General Timothy J. Flynn sworn to September 10, 2015, with annexed exhibits A-D.