Pro se claimant's motion to compel responses to Notice to Admit pursuant to CPLR 3123 denied as improper and unnecessary.
|Claimant short name:||WALLACE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||RAYMOND WALLACE, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 1, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he alleges that he was subjected to wrongful disciplinary confinement in keeplock because the disciplinary determination of guilt was administratively reversed. Claimant has filed and served a notice of motion by which he seeks "an Order pursuant to C.P.L.R. 3123 to compel the defendant to affirm or deny the statments [sic] of facts in the annexed notice to admit truth of facts" (Notice of Motion). Defendant opposes the motion on the ground that it was not served with a Notice to Admit pursuant to CPLR 3123 and thus, claimant's motion to compel is procedurally defective (see Gavin Affirmation, ¶¶ 2-3)(1) . Claimant's motion will be denied for the following reasons.
A notice to admit pursuant to CPLR 3123 is used to identify undisputed factual issues so that the litigation of a matter may be narrowed and made more efficient. A motion to compel a response to a notice to admit is expressly prohibited (see CPLR 3124), because responses to notices to admit and related remedies are wholly governed by CPLR 3123. The 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]).
Accordingly, it is
ORDERED, that claimant's motion number M-92108 is DENIED.
August 1, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim No. 128165, filed July 1, 2016;
(2) Verified Answer, filed August 19, 2016;
(3) Notice of Motion, dated April 2, 2018 and filed April 9, 2018;
(4) Notice to Admit Truth of Facts, dated April 2, 2018, with Exhibits A-K;
(5) Affidavit of Service of "Motion," sworn to April 3, 2018;
(6) Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Claimant's Motion to Compel,
dated June 1, 2018, with Exhibits 1-2, including the Affidavit of Susan Martinelli,
sworn to June 1, 2018;
(7) Claimant's Reply to Affirmation in Opposition to Notice Admit Truth of Facts, dated
June 13, 2018, with Exhibits A-B.
1. Claimant argues that he did not make a motion but that he served a Notice to Admit Truth of Facts (see Wallace Reply, ¶¶ 1, 3-5). While it may have been his intention only to serve a Notice to Admit "upon any other party" (CPLR 3123), he filed with the Clerk of the Court of Claims a "Notice of Motion" requesting a judicial order compelling defendant to respond to a Notice to Admit, and the Clerk properly processed his papers as a motion. The same papers, including the Notice of Motion, were served upon the Attorney General (see Gavin Affirmation, Exhibit 1), and AAG Gavin requested an extension of the return date on the motion (see Wallace Reply, Exhibit B), not an extension of the time to respond to a notice to admit as set forth in CPLR 3123 (a).