Opinion
# 2016-038-518 Claim No. 125219 Motion No. M-87604
03-31-2016
JOHN WHITEv. THE STATE OF NEW YORK
JOHN WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General
Synopsis
Claimant's motion for an order compelling responses to a request for admissions and document demand denied. A notice to admit pursuant to CPLR 3123 is self-effectuating, and a motion to compel a response to such a notice is unnecessary and improper. Moreover, defendant's submission on the motion included its response to the notice to admit and the document that claimant requested, and claimant offered no objection thereto, and thus, the motion was moot.
Case information
| UID: | 2016-038-518 |
| Claimant(s): | JOHN WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125219 |
| Motion number(s): | M-87604 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 31, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed and served this claim which alleges that on August 19, 2014, claimant was attacked by another inmate at the behest of a correction officer (CO), that the CO failed to intervene to prevent claimant's injuries and aid claimant, and that claimant was thereafter denied medical treatment. Claimant moves for an order compelling defendant to comply with his discovery demands, specifically, a notice to admit pursuant to CPLR 3213, and a document demand, both dated August 18, 2015. Defendant has responded to the motion by correspondence with exhibits. For the reasons that follow, claimant's motion will be denied.
Although defendant's reply papers were received after the motion return date, defendant's papers demonstrate an adequate excuse for the late reply, the Court can discern no prejudice due to the late reply and claimant has not objected to the late reply. Accordingly, the Court will consider defendant's reply papers.
Claimant has demanded production of a the "NYSDOCCS, Office of Classification & Movement Classification Manual Sections II-(1) throughout II-85 (1996), including but not limited to all revised edition of the manual" (Exhibit to Motion; King Correspondence, Jan. 11, 2016, Exhibit A [8/18/15 Cover Letter Discovery Demands]). In response to the motion, defendant has provided "a copy of requested material wherein the requested revised material is attached at the end of the document (3 additional pages)" (King Correspondence, at 2; Exhibit C). Claimant has not submitted any objection to the sufficiency of the document produced by defendant, and accordingly, that part of the motion demanding document production will be denied as moot.
That part of claimant's motion seeking an order compelling a response to his request for admissions will also be denied. A notice to admit pursuant to CPLR 3123 is self-effectuating, and a motion to compel a response to such a notice is unnecessary and improper (see Loper v State of New York, UID No. 2014-038-538 [Ct Cl, DeBow, J., Aug. 20, 2014]). Moreover, defendant's response to claimant's notice to admit is dated September 25, 2015 (see King Correspondence, Exhibit B), and claimant's motion is dated September 24, 2015 and was mailed on October 1, 2015. It appears that defendant's response and claimant's motion crossed in the mail, and claimant has offered no further objection to defendant's response to the notice to admit. Accordingly, this branch of claimant's motion, even if properly made, would be denied as moot.
To the extent that claimant complains of a "pattern of non-compliance" (White Correspondence, Dec. 21, 2015) as evidenced by "the amount of previously submitted motions" by claimant, only the present claim and motion are under consideration and such generalized assertions are insufficient to warrant any relief in any event.
Accordingly, it is
ORDERED, that motion number M-87604 is DENIED.
March 31, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 125219, filed November 5, 2014; (2) Verified Answer, dated November 26, 2014; (3) Motion to Compel Discovery, dated September 24, 2015; (4) Affidavit of Services, sworn to October 1, 2015, with Exhibits; (5) Correspondence of John H. White, dated December 21, 2015; (6) Correspondence of Glenn C. King, AAG, dated January 11, 2016, with Exhibits A-C.