Claimant's motion to compel response to interrogatories granted on default. Claimant's request for sanctions denied, as defendant's failure to respond to interrogatories does not constitute frivolous conduct.
|Claimant short name:||WINDLEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||KENNETH WINDLEY, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||September 10, 2020|
|See also (multicaptioned case)|
Claimant pro se, an individual currently incarcerated in a State correctional facility, filed this claim seeking monetary compensation for injuries allegedly sustained in the mess hall at Green Haven Correctional Facility. Claimant moves for an order compelling defendant to respond to a set of interrogatories served on December 17, 2019. Defendant has failed to submit any papers in opposition to the motion, which will be granted on default.
Claimant avers that he served defendant with a discovery demand entitled "Interrogatories with Production of Documents" on December 17, 2019, and that defendant has failed to respond (see Windley Affidavit, ¶¶ 2, 4, Exhibit 1b [Interrogatories With Production of Documents, dated Dec. 17, 2019 and Windley Affidavit of Service, sworn to Dec. 17, 2019]). Claimant argues that defendant's failure to respond to the December 17, 2019 interrogatories constitutes frivolous conduct warranting sanctions in the amount of $50 per day because claimant has been forced to move to compel defendant to respond to other discovery demands on a previous occasion, and thus defendant was on notice "about defaulting on discovery demands" (id. at ¶¶ 5, 7).(1)
The CPLR provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]), although privileged material may be shielded from disclosure upon an objection by a person entitled to assert the privilege (see CPLR 3101 [b]). The CPLR requires a response to interrogatories within twenty days of service (see CPLR 3133 [a]), and a motion for a court order compelling discovery is authorized only "[i]f a person fails to respond or comply with any request, notice, interrogatory, demand, question or order" (CPLR 3124). In the Court's view, claimant's interrogatories - which seek information regarding claimant's accident, his subsequent medical treatment, and his removal from his mess hall assignment - are not, on their face, immaterial or unnecessary to his prosecution of this claim.(2) In the absence of any objection or response to the interrogatories or to the instant motion by defendant, claimant's motion will be granted on default. Defendant will be directed to answer claimant's December 17, 2019 interrogatories, except that it may seek a protective order on the ground that an interrogatory is privileged or the request therefor is palpably improper (see Fausto v City of New York, 17 AD3d 520, 522 [2d Dept 2005] [failure to respond to a discovery demand within the time allotted under the CPLR "foreclose(s) inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper"]; see also Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]).
To the extent claimant seeks the imposition of sanctions pursuant to 22 NYCRR § 130-1.1 (a) for defendant's failure to respond to the December 17, 2019 interrogatories (see Windley Affidavit, ¶¶ 7-8), a court has the discretion to "impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct" (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [a]). As relevant here, "conduct is frivolous if . . . it is completely without merit in law" or "it is undertaken primarily to delay or prolong the resolution of the litigation" (id., § 130-1.1 [c] , ). Part 130 of the Chief Administrator's Rules further provide in pertinent part:
"In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party"
(id., §130-1.1 [c]). In support of his request for sanctions, claimant argues that defendant's failure to respond to his interrogatories constitutes frivolous conduct inasmuch as claimant has previously moved to compel defendant to respond to prior discovery demands after defendant failed to respond, and that defendant's failure to respond to the interrogatories at issue here is "not a singular occurrance [sic], but a repeated offense" (Windley Affidavit, ¶ 8).
As claimant correctly observes, this Court granted in part claimant's previous motion to compel insofar as it sought a response from defendant to a June 22, 2018 notice for discovery and inspection (see Windley v State of New York, UID No. 2019-038-566 [Ct Cl, DeBow, J., July 18, 2019]).(3) The Court declined at that time to impose sanctions on defendant for its failure to respond to claimant's discovery demands inasmuch as claimant had failed to provide an affidavit of service establishing when those demands were initially served, nor had claimant argued that defendant's conduct was frivolous (see id.). However, in connection with this motion, claimant has provided an affidavit of service establishing that the interrogatories at issue here were served on defendant on December 17, 2019, and defendant has not responded to the motion and thus has not controverted that showing.
Although the Court previously admonished defendant that it did not countenance its failure to respond to claimant's discovery demands within the statutorily prescribed twenty days (see Windley, UID No. 2019-038-566), and a "defendant's willful and contumacious conduct can be inferred from its repeated failure to comply with . . . discovery demands" (Nicoletti v Ozram Transp., 286 AD2d 719, 719 [2d Dept 2001]), the Court is not persuaded at this juncture that defendant's failure to respond to the December 17, 2019 interrogatories, even considering defendant's previous failure to respond to claimant's discovery demands, constitutes frivolous conduct within the meaning of 22 NYCRR § 130-1.1.(4) Claimant has provided an affidavit of service establishing that he served the interrogatories on defendant on December 17, 2019, but has otherwise made no showing that defendant's failure to respond to the interrogatories was intended primarily to delay or prolong this litigation. While claimant's request for sanctions will be denied at this time, the Court reiterates and states in no uncertain terms that it does not countenance defendant's inattention to claimant's discovery demands and its failure to respond in a timely manner, and will not hesitate to exercise its discretion to impose sanctions should claimant be forced to engage in further motion practice to compel defendant to respond to his routine discovery demands.
Accordingly, it is
ORDERED, that claimant's motion number M-95490 is GRANTED IN PART, and defendant shall, within twenty (20) days of the date of filing of this decision and order, respond to claimant's interrogatories dated December 17, 2019, and it is further
ORDERED, that claimant's motion number M-95490 is DENIED in all other respects.
September 10, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 131082, filed March 5, 2018;
2. Verified Answer, filed April 19, 2018;
3. Notice of Motion to Compel Responses to Interrogatories Under NYCPLR §§ 3124 & 3126, undated;
4. Affidavit of Kenneth Windley in Support of Motion to Compel Responses to Interrogatories Under NYCPLR §§ 3124 & 3126, sworn to March 5, 2020, with Exhibits 1a & 1b;
5. Affidavit of Service of Kenneth Windley, sworn to March 5, 2020.
1. Claimant also avers that defendant has committed a "fraud upon this Court via an embellishment of truth regarding prior discovery responses and delivery" based upon the "assertions of [the Assistant Attorney General defending this claim] of hi[s] mailing prior discovery to [claimant]," and that the Green Haven CF legal mail logbook shows that the AAG "embellished the fact that he forwarded any documents to th[e] [c]laimant on the days and times in question" (Windley Affidavit, ¶ 3). However, as noted above, defendant has not responded to the instant motion, and thus claimant appears to be referring to representations by defendant that were made in response to previous motion practice and, in any event, the excerpts from the logbook attached to the motion indicate only that claimant received mail on certain dates, and does not indicate the sender of the mail or its contents (see id., Exhibit 1a). Accordingly, it is unclear to the Court what discovery responses claimant is alleging were not mailed to him, nor can the Court verify that they were not provided to claimant, as he alleges.
2. It appears that claimant has inadvertently omitted the second page of his December 17, 2019 demand for interrogatories, which apparently contained the first through third interrogatories (see Windley Affidavit, Exhibit 1b [Interrogatories With Production of Documents, dated Dec. 17, 2019]).
3. The Court denied claimant's motion to compel defendant to respond to a notice to admit on the ground that notices to admit are self-effectuating, and by failing to respond, defendant was deemed to have admitted the matters contained in the notice (see Windley v State of New York, UID No. 2019-038-566 [Ct Cl, DeBow, J., July 18, 2019]).
4. The Court recognizes that on March 7, 2020, the Governor declared a state of emergency due to the Coronavirus pandemic (see Executive Order No. 202, dated Mar. 7, 2020 [9 NYCRR 8.202]), and that on March 20, 2020, the Governor issued an Executive Order tolling statutory time limitations in response to the public health emergency, which has most recently been extended through October 4, 2020 (see Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8]; Executive Order No. 202.60, dated Sept. 4, 2020 [9 NYCRR 8.202.60]). However, defendant's twenty day time limit to respond to the interrogatories (see CPLR 3133 [a]), which as noted above, were served on December 17, 2019, expired long before the emergency was declared or the statutory time limit was tolled under Executive Order No. 202.8.