Opinion
# 2016-038-515 Claim No. 124872 Motion No. M-87603
03-28-2016
JOHN H. WHITE v. STATE OF NEW YORK
JOHN H. WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Claimant's motion for an order compelling responses to a request for admissions and striking "all fraudulent defenses" 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, and, in any event, claimant seeks admissions regarding disputed factual issues and legal conclusions to be determined at trial, and thus, the notice to admit is improper. That part of the motion seeking dismissal of defenses denied because the motion is not supported by an affidavit or other demonstration that any of the defenses has no merit.
Case information
| UID: | 2016-038-515 |
| Claimant(s): | JOHN H. WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124872 |
| Motion number(s): | M-87603 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN H. WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 28, 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 claimant sustained injuries flowing from certain conduct by defendant's employee Donald Uhler on June 14, 2014 and June 24, 2014. A prior Decision and Order of this Court granted in part defendant's pre-answer motion to dismiss, leaving only a cause of action for negligent supervision and training (see White v State of New York, UID No. 2015-038-535 [Ct Cl, DeBow, J., June 5, 2015]). Defendant filed its verified answer to the claim on November 12, 2015. Claimant filed the instant motion on October 9, 2015, in which he appears to seek an order compelling responses to a request for admissions and striking "all fraudulent defenses" (Correspondence of John H. White, dated September 24, 2015). Defendant opposes the motion.
The papers submitted by claimant include, in their entirety, a one page letter dated September 24, 2015 that was treated as a notice of motion, an affidavit of service, sworn to October 1, 2015, an affidavit of service of "(2) pages of Admissions" sworn to July 9, 2015, and two pages entitled "CPLR #3123, Admissions" dated and sworn to July 9, 2015 setting forth 12 enumerated statements requesting admissions of fact.
To the extent that claimant requests dismissal of "fraudulent defenses," such relief will not be granted because the motion is not supported by an affidavit or other demonstration that any of the five affirmative defenses has no merit (see CPLR 3212 [b]). It is noted that the motion was made prior to the date on which defendant filed and served its verified answer, thus explaining the lack of argument or proof in support of claimant's motion to dismiss defenses.
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, the underlying purpose of a notice to admit is to eliminate dispute over undisputable factual matters, and a notice to admit is improper if it does "not involve 'clear-cut matters' that [are] beyond dispute" (Eddyville Corp. v Relyea, 35 AD3d 1063, 1066 [3d Dept 2006], quoting Howlan v Rosol, 139 AD2d 799 [3d Dept 1988]), and does not seek to merely "confirm[] matters where 'there can be no substantial dispute at the trial' " (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 453 [1st Dept 1995] quoting CPLR 3123 [a]; see Sedney v State of New York, UID No. 2006-044-503 [Ct Cl, Schaewe, J., Oct. 17, 2006]). Inasmuch as claimant seeks admissions regarding "material and ultimate [factual] issues, and legal conclusions on material issues" (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, at 453) - such as whether defendant complied with agency directives - the notice to admit is improper.
Claimant's submission includes an affidavit of service that states that his request for admissions was served on July 10, 2015, and defendant's submission acknowledges receipt thereof on July 13, 2015 (see Krenrich Affirmation, Exhibit B). Defendant further acknowledges receipt of this motion including the request for admission on October 8, 2015 (see id., ¶ 7; Exhibit A), and asserts that it responded to the demand for admissions within 20 days of service of its answer (see id., ¶ 8). Whether defendant's response was timely or sufficient need not be discussed.
Accordingly, it is
ORDERED, that motion number M-87603 is DENIED.
March 28, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 124872, filed August 20, 2014; (2) Verified Answer, dated November 10, 2015; (3) Correspondence of John H. White, dated September 24, 2015; (4) Affidavit of Service, sworn to October 1, 2015, with Exhibit (3 pages); (5) Affirmation of Michael T. Krenrich, AAG, in Opposition to Claimant's Motion, dated December 16, 2015, with Exhibits A-B; (6) Correspondence of Michael T. Krenrich, AAG, dated December 16, 2015; (7) Correspondence of John H. White, dated December 21, 2015.