Opinion
# 2019-038-502 Claim No. 122631 Motion No. M-93049
01-16-2019
CARLOS WARD v. THE STATE OF NEW YORK
CARLOS WARD, Pro se No Appearance
Synopsis
Claimant's motion to compel discovery is granted on default. Defendant is ordered to produce all demanded items except those to which it asserts an objection of privilege or palpable impropriety.
Case information
| UID: | 2019-038-502 |
| Claimant(s): | CARLOS WARD |
| Claimant short name: | WARD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122631 |
| Motion number(s): | M-93049 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | CARLOS WARD, Pro se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | January 16, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he seeks damages for injuries he allegedly sustained on April 17, 2011 while playing basketball on an outdoor basketball court at Green Haven Correctional Facility. Claimant filed this motion seeking an order to compel defendant to respond to his demand for discovery and inspection of documents and photographs. Defendant has failed to submit any papers in opposition to the motion, which will be granted on default.
On or about September 4, 2018, claimant served a notice of discovery and inspection seeking six categories of documents and photographs (see Ward Affidavit, ¶ 4; Exhibit 1). After defendant did not respond, claimant made two unsuccessful attempts to get a response (see id., ¶¶ 5-6; Exhibit 2), after which claimant filed this motion on November 2, 2018. In the absence of opposition to claimant's motion, defendant will be directed to answer claimant's demand and produce the documents and photographs sought, except that it may seek a protective order on the ground that a requested document or photograph is privileged or the request therefor is palpably improper.
Defendant's failure to raise objections within 20 days of service of a demand (see CPLR 3122 [a] [1]) "foreclose[s] inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper" (Fausto v City of New York, 17 AD3d 520, 522 [2d Dept 2005]; see Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]; Griffith v State of New York, UID No. 2007-015-173 [Ct Cl, Collins, J., Apr. 4, 2007]; see CPLR 3122 [a] [1]). A discovery demand is palpably improper if it seeks information that is confidential and does not appear to be relevant to the issues in the case (see Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [3d Dept 2000]; Briand Parenteau, Inc. v Dean Witter Reynolds, 267 AD2d 576, 577 [3d Dept 1999]), or, as pertinent to this claim that arose in a correctional facility, if the demand seeks information that could compromise facility security if disclosed (see Williams v State of New York, UID No. 2005-032-005 [Ct Cl, Hard, J., Feb. 8, 2005]; Rodriguez v State of New York, UID No. 2005-009-063 [Ct Cl., Midey, J., Dec. 13, 2005]).
To the extent that claimant seeks an order compelling defendant to respond to a notice to admit that he may have served on defendant (see id., ¶ 7), a notice to admit is self-effectuating and "a motion to compel a response to such a notice is unnecessary and improper" (Loper v State of New York, UID No. 2014-038-538 [Ct Cl, DeBow, J., August 20, 2014]; see White v State of New York, UID No. 2016-038-518 [Ct Cl, DeBow, J., March 31, 2016]). Thus, relief in the nature of compelling a response to a notice to admit will not be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-93049 is GRANTED IN PART, to the extent that defendant is directed to answer claimant's demand for discovery and inspection dated September 3, 2018 within 20 days of the filing date of this order, and shall produce the documents and photographs sought, except that defendant may move for a protective order on the grounds that the documents or photographs are privileged or the demands are palpably improper; and it is further
ORDERED, the claimant's motion number M-93049 is DENIED in all other respects.
January 16, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 122631, filed April 18, 2013; (2) Notice of Motion to Compel Discovery and Inspection, dated October 30, 2018; (3) Affidavit of Carlos Ward in Support of Motion to Compel Discovery and Inspection, sworn to October 16, 2018, with Exhibits 1-3; (4) Affidavit of Service of Carlos Ward, sworn to October 30, 2018; (5) Correspondence of Heather R. Rubinstein, AAG, dated November 20, 2018; (6) Correspondence of Nancy Schulman, Principal Law Clerk, dated November 26, 2018.