Claimant's motion to reject untimely response to notice to admit and for sanctions denied. Defendant's five day delay in serving response was de minimis and non-prejudicial, and Court exercised its discretion to extend time to serve response nunc pro tunc. Since the CPLR provides a post-trial remedy for responses to the notice to admit that are proven at trial to be false or incorrect, claimant's request for sanctions denied as premature.
|Claimant short name:||ANEKWE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||PETER ANEKWE, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 4, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that staff at Green Haven Correctional Facility did not properly pack a typewriter which was then damaged during return shipping to the manufacturer. Claimant has filed this motion seeking to reject defendant's response to claimant's notice to admit and for sanctions. Defendant opposes the motion.
A notice to admit containing six items was served by claimant on February 28, 2017 and received in the Office of the Attorney General on March 3, 2017 (see Gavin Affirmation, Exhibit B [Notice to Admit and Affidavit of Service]). On March 30, 2017 - 27 days after its receipt of the notice to admit - defendant served a response on claimant in which it admitted four of the items (see id., Exhibit C [Response to Notice to Admit, ¶¶ 1, 3, 4, 5]), objected to one item (see id. [Response to Notice to Admit, ¶ 2]), and denied one item (see id. [Response to Notice to Admit, ¶ 6]). Claimant's motion argues that defendant's response was untimely and that defendant did not apply for an extension, and that all of the items should therefore be deemed admitted by operation of law (see Anekwe Affidavit, ¶¶ 2-6]. Defendant replies that it did not default in responding to the notice to admit, and that "any possible delay was unintentional, de minimus, [sic] and in no way prejudicial to the claimant" (Gavin Affidavit, ¶ 3).
The CPLR provides that each of the items in a notice to admit "shall be deemed admitted unless within twenty days after the service thereof or within such further time as the court may allow" a response to the notice to admit is served (CPLR § 3123 [a] [emphasis added]). There is no dispute that defendant's response to claimant's notice to admit was served more than 20 days after defendant was served with the notice to admit, and thus, defendant's response was untimely. Claimant argues for a strict application of the law that would deem all six of the items admitted. This is neither necessary, nor desirable. Defendant's response was served only five days late - a de minimis delay - and claimant does not argue that the delay prejudiced him in any manner. Accordingly, the Court will exercise its discretion to extend nunc pro tunc defendant's time to respond to the notice to admit (see Alford v Progressive Equity Funding Corp., 144 AD2d 756, 757 [3d Dept 1988]; see also Nicholas Cabrini, Inc. v Hagenbart, 28 Misc3d 136[A], at *1 [N.Y. Supreme Court Appellate Term, 2010] [no abuse of discretion in extending time to answer where party served response fifteen days late]; Retamozzo v State of New York, 36 Misc.3d 1237(A), at *11 [Ct Cl 2012] [court had discretion to extend deadline nunc pro tunc notwithstanding that application was made 20 days after deadline for service of response]). Claimant's contention that the notice to admit should be deemed admitted especially because defendant did not obtain permission to extend the time to reply prior to the expiration of the 20-day deadline is unsupported by authority, and precedent demonstrates that a proactive application to extend the deadline is not a prerequisite to the Court's exercise of discretion (see Alford v Progressive Equity Funding Corp.; Nicholas Cabrini, Inc. v Hagenbart). Thus, that branch of claimant's motion that seeks to have deemed as admitted all six items in claimant's notice to admit will be denied.
Claimant requests sanctions against defendant, arguing that it did not properly answer the two items that it did not admit (see Gavin Affirmation, Exhibit C [Response to Notice to Admit, ¶¶ 2, 6]. However, if claimant proves at trial that the two items that defendant did not admit should have been admitted, " he may move at or immediately following the trial for an order requiring [defendant] to pay him the reasonable expenses incurred in making such proof, including attorneys fees" (CPLR 3123 [c] [emphasis added]). Thus, claimant's request for sanctions is premature, and will be denied without prejudice to a ripe application.
Accordingly, it is
ORDERED, that claimant's motion number M-90451 is DENIED.
October 4, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 127024, filed November 12, 2015;
(2) Notice of Motion, dated April 27, 2017;
(3) Affidavit of Peter Anekwe in Support, sworn to May 1, 2017;
(4) Affirmation of Elizabeth A. Gavin, AAG, in Opposition, dated June 21, 2017, with