New York State Court of Claims

New York State Court of Claims
DOLBERRY v. THE STATE OF NEW YORK, # 2018-040-009, Claim No. 129253, Motion No. M-91458

Synopsis

Claimant's Motion for a "Request for Admissions" denied.

Case information

UID: 2018-040-009
Claimant(s): ANDRE DOLBERRY
Claimant short name: DOLBERRY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129253
Motion number(s): M-91458
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Andre Dolberry, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: February 1, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, the Motion of pro se Claimant, Andre Dolberry, for a "request for Admissions" is denied.

This pro se Claim, which was filed in the office of the Clerk of the Court on February 1, 2017, alleges that, on August 18, 2016, while incarcerated at Franklin Correctional Facility, Claimant was assaulted by four inmates as a result of the State's failure to properly supervise them. The Claim also asserts that Claimant lost some of his personal property when, after the assault, he was transferred to the Special Housing Unit.

CPLR 3123(a) provides in pertinent part:

At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before trial, 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 the correctness or fairness of representation of any photographs, described in and served with the request, 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.

This is Claimant's second Motion seeking Admissions from Defendant. The prior Motion was denied by this Court on the basis that Claimant failed to set forth that he served a Notice to Admit upon Defendant pursuant to CPLR 3123(a) (Dolberry v State of New York, UID No. 2017-040-077 [Ct Cl, McCarthy, J., July 6, 2017]).

Defendant opposes the Motion on the ground that Claimant has not served a discovery demand upon the State relating to this Claim (Affirmation in Opposition of Christina Calabrese, Esq., 4). Claimant states, in his unsworn statement submitted in support of his Motion, that he is re-submitting his previous motion "along with the questions of request of admissions attached" (Claimant's Statement, 2). However, the Court notes that the Request for Admissions is not attached to the Court's copy of the Motion papers. In addition, attaching the Request for Admissions to the Motion papers alone is insufficient. As Claimant was previously advised by the Court, he must serve a Notice to Admit upon Defendant prior to bringing a Motion. This, Claimant has failed to establish he has accomplished. Thus, there is no evidence that Defendant failed to comply with a Notice to Admit made by Claimant.

The Motion for Admissions is denied.

February 1, 2018

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's Motion "for Admissions":

Papers Numbered

Notice of Motion and Statement in Support 1

Affirmation in Opposition 2

Papers Filed: Claim, Answer