Claimant's motion to compel discovery responses granted in part. Claimant's document demands do not appear material or unnecessary to his prosecution of the claim, and defendant has not responded to the motion or to the demand. Motion denied as unnecessary with respect to notice to admit, which is self-effecteation.
|Claimant short name:||VEGA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||LUIS VEGA, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||November 30, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained when he was assaulted in the recreation yard at Green Haven Correctional Facility (CF) on July 27, 2019. In a Decision and Order dated February 27, 2020, the Court denied claimant's motion to compel responses to certain discovery demands on the ground that claimant had failed to demonstrate that he served the demands on defendant prior to filing the motion to compel (see Vega v State of New York, UID No. 2020-038-526 [Ct Cl, DeBow, J., Feb. 27, 2020]). Claimant now moves again to compel defendant to respond to certain discovery demands. Defendant has not responded to the motion.
Claimant has submitted a notice of motion in which he seeks compliance with twenty items of discovery he has demanded, including reports related to the incident that led to his alleged injuries, medical reports, statements of various Green Haven CF employees, and video and audio recordings (see Notice of Motion, pg. 1). Claimant also seeks responses to a "demand for admissions" pursuant to CPLR 3123 in which claimant sought various admissions regarding defendant's knowledge of his request to be place in protective custody and awareness of prior inmate-on-inmate assaults in the Green Haven CF recreation yard (see id. at pg. 2).
In support of the motion, claimant has submitted a sworn affidavit in which he avers that "[o]n January 7, 2020, January 29, 2020 and March 16, 2020, [he] served upon first class mail Discovery and Admission requests upon the Attorney General of the State of New York," but that "to date [he has] not received the requested admissions or discovery, nor [has he] received a single acknowledgement [sic] of [his] requests" (Vega Affidavit in Support, ¶ 2). Claimant requests an order directing defendant to comply with his discovery demands "as set forth in the within Notice of Motion" (id. at ¶ 3). As noted above, defendant has not responded to the motion.
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 discovery demands within twenty days of their service (see CPLR 3122 [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). Although claimant has not included with his submission copies of the discovery demands that are the subject of this motion with accompanying affidavits of service, he has set forth the contents of both the demand for documents and the notice to admit in his notice of motion, and he has averred in his sworn affidavit that he served those demands on defendant on three different occasions in January and March 2020. Defendant has not responded to the instant motion and thus has not argued that claimant failed to serve the discovery demands prior to the filing of this motion. The Court concludes, upon review, that the documents requested in claimant's "Demand for Discovery" do not, on their face, appear to be immaterial or unnecessary to his prosecution of the claim, and in the absence of any objection or response to the demand or to this motion from defendant, claimant's motion will be granted on default. Defendant will be directed to respond to the twenty demands identified in claimant's notice of motion, except that it may seek a protective order on the ground that a requested document or recording is privileged or that 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]).
With respect to notices to admit, the CPLR permits a party to
"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"
(CPLR 3123 [a]). Within twenty days of the service of the notice to admit, or within such additional time as the court may allow, the adverse party may serve a sworn statement either denying the admissions requested, or setting forth in detail why the party cannot truthfully either admit or deny (see id.). A notice to admit pursuant to CPLR 3123 is self-effectuating; that is, where, as here, there is not a timely response to the notice to admit, the matters in the notice to admit are "deemed admitted" (id.), and the CPLR does not permit a motion to compel a response (see CPLR 3124; see also Loper v State of New York, UID No. 2014-038-538 [Ct Cl, DeBow, J., Aug. 20, 2014] ["a motion to compel a response to . . . a notice (to admit) is unnecessary and improper"]). Thus, to the extent claimant seeks an order compelling defendant to respond to his "Demand for Admissions," as set forth in the notice of motion, his motion will be denied as unnecessary.
Finally, to the extent claimant seeks an order "striking . . . Points (1), (2), and (3) of the Defendant's Verified Answer" (Notice of Motion, pg. 2; see Vega Affidavit in Support, ¶ 4 ["I further request . . . that this Honorable Court strike certain portions of the Defendant's Verified Answer"]), it is unclear from claimant's submission whether he is requesting that the Court strike the first through third paragraphs of defendant's Verified Answer or the first through third affirmative defenses asserted therein. In any event, to the extent claimant seeks dismissal of the affirmative defenses asserted in the Verified Answer pursuant to CPLR 3211 (b) - which provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" - such relief cannot be granted inasmuch as claimant makes no substantive argument in support of that request and thus has utterly failed to meet his "burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Servs., LLC 34 AD3d 559, 559 [2d Dept 2006]). To the extent that claimant is seeking sanctions due to defendant's failure to disclose items of discovery sought, the record before this Court does not demonstrate, at this juncture, that defendant wilfully failed to answer claimant's demands (see CPLR 3126).
Accordingly, it is
ORDERED, that claimant's motion number M-95888 is GRANTED IN PART, and defendant shall, within twenty (20) days of the filing of this decision and order, respond to claimant's "Demand for Discovery" as set forth in the Notice of Motion; and it is further
ORDERED, that claimant's motion number M-95888 is DENIED in all other respects.
November 30, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 133980, filed November 15, 2019;
2. Verified Answer, filed December 6, 2019;
3. Notice of Motion, dated June 3, 2020;
4. Affidavit of Luis Vega in Support, sworn to June 4, 2020;
5. Affidavit of Service of Luis Vega, sworn to August 31, 2020;
6. Decision and Order, Vega v State of New York, UID No. 2020-038-526 (Ct Cl, DeBow, J., February 27, 2020).