Defendant's motion to strike notice to admit granted in part, denied in part.
|Claimant short name:||ANEKWE|
|Footnote (claimant name) :|
|Defendant(s):||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: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 12, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that defendant's agents denied him access to a medical specialist for treatment for a cyst on his right wrist for eight years, ultimately resulting in surgery that allegedly caused claimant injury. The claim recites medical negligence and malpractice and deliberate indifference on the part of employees of the New York State Department of Corrections and Community Supervision (DOCCS). On December 26, 2017, defendant received from claimant a "Notice to Admit Truth of Facts" pursuant to CPLR 3123 that contained 22 enumerated items. By motion filed on January 5, 2018, defendant requests an order striking the entire Notice to Admit as improper. Without reference to or discussion of any of the particular items for which admission is requested, defendant argues that "a notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admissions of fundamental and material issues or ultimate acts that can only be resolved at trial" (Smith Affirmation, ¶ 5), and that the notice to admit "is not intended to take the place of other discovery and cannot be used to seek admission of material issues at the heart of the controversy" (id., ¶ 6). Claimant opposes the motion with contentions that the matters presented in his notice to admit are not improper.
CPLR 3123 (a) states, in relevant part, that "a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents . . . or of the truth of any matters of fact set forth in the request as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry." While it is true that a notice to admit is a discovery device that is authorized within Article 31 of the CPLR, a notice to admit may not be used as a substitute for other discovery devices, such as taking depositions before trial (see DeSilva v Rosenberg, 236 AD2d 508, 509 [2d Dept 1997]). The notice to admit "is not truly a disclosure device but just a procedure designed to crystallize issues" (Siegel, N.Y. Prac.§ 364, at 624 [Fifth ed.] [internal quotation omitted]). In other words, the purpose of the notice to admit is to eliminate dispute as to matters of fact that have already been discovered so that the trial of the matter may be streamlined. Here, while claimant argues that his questions do not cover ultimate conclusions in the matter, he also appears to acknowledge that his notice to admit "seek[s] discovery on those factors that could be resolved and not disputed at trial" (Claimant's Opposition to Motion to Strike, ¶ 12 [emphasis added]).
While several of the items recited in claimant's notice to admit appear to be properly presented, the vast majority are not. Item number 6 seeks admission of the identity of claimant's medical provider at the correctional facility, but does not provide a date. This item is not improper per se, but its admission may require a qualification or explanation, as provided for in CPLR 3213 (a). Item number 7 requests admission that claimant was issued a medical permit for a wrist brace on a date certain. This item is not improper per se, but since claimant has a copy of the permit in his possession (see Claim No. 129363, Exhibit 1), a more proper request for admission would be as to the genuineness of the permit document, not the substance of it. Item numbers 10, 11 and 13 seek admission of dates on which claimant was sent to see a specialist for his wrist problem, facts about which there can be no substantial dispute at the trial and which are likely within defendant's knowledge inasmuch as that information would have been recorded in claimant's ambulatory health records. The remainder of the items in claimant's notice to admit will be stricken for the reasons that follow.
Item numbers 1, 2, 3, 4, and 5 request admissions about medical treatment of other unnamed inmates, and are improper in that they appear to be seeking potentially discoverable information, and not mere admissions. Item numbers 8, 9 and 12 request admissions about the timing of claimant's first "complaint" about his wrist and his "wrist problem." These present a subjective issue about which there may be substantial dispute at trial. Item numbers 14, 15, 16, 17, 18, 19 and 20 all request admissions about a "consult" that are, as stated in Item number 14, referenced in a document. It is not known whether this document is in claimant's possession, and it appears that the requests seek discovery rather than mere admissions of undisputed fact. Item number 21 seeks admission that claimant's wrist condition was mis-diagnosed, and Item number 22, as articulated by claimant, requests an admission that his surgery was scheduled "as a result of" the condition of his wrist, both of which address clearly disputable and ultimate issues to be addressed at trial.
Accordingly, it is
ORDERED, that defendant's motion number M-91641 is GRANTED IN PART, and Item numbers 1, 2, 3, 4, 5, 8, 9, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 22 are STRICKEN; and it is further
ORDERED, that defendant's motion number M-91641 is DENIED in all other respects; and it is further
ORDERED, that defendant shall have twenty (20) days from the date of filing of this Decision and Order to address Item numbers 6, 7, 10, 11, 13 in claimant's Notice to Admit dated December 20, 2017.
April 12, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129363, filed February 28, 2017;
(2) Notice of Motion, dated January 3, 2018;
(3) Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Strike Notice to
Admit Truth of Facts, filed January 5, 2018, with Exhibit A;
(4) Opposition of Peter Anekwe to Defendant's Motion to Strike, dated January 12, 2018;