Pro se Claimant's Motion to Compel Defendant to Answer Interrogatories denied.
|Claimant(s):||ANDRE J. MELETTE|
|Claimant short name:||MELETTE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Andre J. Melette, 17-R-1089, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Anthony Rotondi, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||February 21, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, pro se Claimant's Motion to compel Defendant to answer Claimant's interrogatories is denied.
This pro se Claim, which was filed with the Clerk of the Court on February 25, 2014, alleges two separate and distinct causes of action for wrongful confinement, both of which arose at Bare Hill Correctional Facility (hereinafter, "Bare Hill").
The first cause of action asserts that Claimant was wrongfully confined for a period of 30 days, from October 26, 2013 to November 25, 2013. Claimant alleges that, on October 26, 2013, he was placed in disciplinary confinement pending a Tier II hearing and that he received a copy of a Tier II misbehavior report on October 27, 2013, charging him with violating three specific prison rules, that was signed by a Bare Hill nurse. A disciplinary hearing was commenced on October 31, 2013, and Claimant advised the hearing officer that there was a procedural error in the misbehavior report (Claim, ¶ 6). Claimant asserts that the hearing officer did not dismiss the charges, but, instead, adjourned the hearing in order to obtain testimony from the nurse (id., ¶ 7). Claimant asserts that two additional extensions were granted, adjourning the hearing to November 21, 2013 (id., ¶¶ 8-9). On November 19, 2013, Claimant sent a letter to the Bare Hill Superintendent advising him of the above facts and requesting that the charges against him be dismissed (id., ¶ 11). On November 20, 2013, Claimant received a memorandum from the Bare Hill Superintendent advising him that Claimant's correspondence had been received and had been referred to the Deputy Superintendent for Security for review and response (id., ¶12). On November 25, 2013, Claimant received a memorandum from Captain Boyd stating that the October 26, 2013 misbehavior report was reviewed and the hearing had been expunged from Claimant's record (id., ¶ 13). Claimant states that he was released from confinement on that date and was wrongfully confined for 30 days.
The second cause of action alleges that Claimant was wrongfully confined for 60 days (January 27, 2014 to March 27, 2014) following a Tier III disciplinary hearing. Claimant asserts that the hearing officer improperly took testimony from three employee witnesses, requested a time extension until the fourteenth day, and he failed to ascertain why Claimant's inmate witness refused to testify (Claim, ¶ 23).
In his affidavit submitted in support of his Motion, Claimant asserts that he served interrogatories upon Defendant on September 29, 2017 (Affidavit of Andre J. Melette [hereinafter, "Melette Affidavit"], ¶ 4), that, pursuant to CPLR 3115(e), Defendant had three days to object or the objection is waived, and that Defendant's objection to the interrogatories is dated October 12, 2017 (id.). Claimant asserts that Defendant's objection is untimely and, even if it were not untimely, he is entitled to answers to his interrogatories, as CPLR 3102(f) states that, when the State is a party to an action, disclosure is available as if the State were a private person (id., ¶ 6).
In opposition to the Motion, Defendant asserts that, in paragraph 5 of his affidavit, Claimant references an attached Exhibit A. However, the exhibit was not included in the motion served upon Defendant (Affirmation of Anthony Rotondi, Esq., Assistant Attorney General [hereinafter, "Rotondi Affirmation"], ¶ 4 and Ex. A attached). Counsel asserts that Defendant should not have to oppose a motion when purported exhibits are not attached (id., ¶ 5). Counsel further asserts that Claimant has attached neither a copy of the interrogatories or the objections made by Defendant, nor a copy of the Claim to allow the Court the ability to determine the validity of Defendant's objections (id., ¶ 6). In addition, Defendant asserts that Claimant's reliance on CPLR 3115(e) is misplaced. Defendant states that, pursuant to CPLR 3133, the recipient of interrogatories has 20 days in which to object to such interrogatories (id., ¶ 7).
In reply, Claimant has submitted, among other items, copies of the Claim (Ex. 1 attached to Reply Affidavit of Andre J. Melette [hereinafter, "Melette Reply Affidavit"]); two sets of interrogatories, one directed to Captain A. Boyd (Melette Reply Affidavit, Ex. 2) and the other directed to Mr. R. Gravel, Hearing Officer (Melette Reply Affidavit, Ex. 2A); and Defendant's letter objecting to the interrogatories directed to Captain Boyd and Mr. Gravel. Defendant asserts in the letter that these actually are not interrogatories, but, rather, are depositions upon written questions (CPLR 3108), and, as Defendant has not stipulated to such discovery method, the demands are improper (Melette Reply Affidavit, Ex. 3).
Defendant is correct that CPLR 3133(a) provides that a party served with interrogatories has 20 days after service of the interrogatories to serve an answer to the interrogatories, or to object to them. Here, Defendant objected to the interrogatories as being depositions upon written questions within the statutory time period. By contrast, CPLR 3115(e) concerns a different matter, namely, the time within which objections must be made to questions proposed for a deposition on written questions (see Siegel, NY Practice § 359 at 608-609 [5th ed. 2011]).
Pursuant to CPLR § 3130(1), a party may serve interrogatories on another party. Interrogatories directed to nonparty employees of the State, however, are improper (Martinez v State of New York, 111 AD3d 1445, 1446 [4th Dept 2013], lv dismissed 23 NY3d 956 ; Rosa v State of New York, UID No. 2014-049-054 [Ct Cl, Weinstein, J., Oct. 14, 2014]; see Vidal v State of New York, UID No. 2017-038-580 [Ct Cl, DeBow, J., Nov. 3, 2017]; Towner v State of New York, UID No. 2015-053-504 [Ct Cl, Sampson, J., Aug. 12, 2015]).
Claimant does not contend that the interrogatories are directed to the State. He asserts that each question is relevant and directed to people who have knowledge of and/or direct involvement in the incidents (Melette Reply Affidavit, ¶ 6).
As the interrogatories are specifically directed to Captain Boyd and Mr. Gravel, and Claimant concedes that they are nonparty employees of Defendant (see Melette Affidavit, ¶ 6) and he is seeking information directly within their knowledge, the Court finds the interrogatories are improper as they are, in reality, a deposition on written questions and not interrogatories (Martinez v State of New York, supra; Vidal v State of New York, supra).
Therefore, based upon the foregoing, Claimant's Motion to compel Defendant to answer the interrogatories is denied. Claimant, however, may, if he chooses, submit interrogatories to Defendant which request appropriate information from the State itself, and which are not addressed to the states of mind or knowledge of particular employees.
February 21, 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 to Compel:
Notice of Motion, Affidavit in Support 1
Affirmation in Opposition & Exhibit attached 2
Reply Affidavit & Exhibits attached 3
Papers Filed: Claim, Answer