Opinion
# 2019-038-612 Claim No. 132983 Motion No. M-94643
12-09-2019
LATONIO AYALA #13 B 2029 v. THE STATE OF NEW YORK
LATONIO AYALA, Pro se No Appearance
Synopsis
Claimant's motion to compel response to discovery demand and interrogatories granted on default. Defendant may seek a protective order on the ground that an item of discovery or interrogatory is privileged on the demand, therefor is palpably improper. Claimant's request for sanctions denied inasmuch as claimant failed to demonstrate that defendant's conduct was frivolous.
Case information
| UID: | 2019-038-612 |
| Claimant(s): | LATONIO AYALA #13 B 2029 |
| Claimant short name: | AYALA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132983 |
| Motion number(s): | M-94643 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | LATONIO AYALA, Pro se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries he allegedly sustained after he was assaulted by another inmate at Green Haven Correctional Facility (CF) on January 24, 2019. Claimant moves for an order compelling defendant to provide him with certain items of discovery and to respond to two sets of interrogatories. Defendant has failed to submit any papers in opposition to the motion, which will be granted on default.
In correspondence dated November 18, 2019, defendant requested an adjournment of the return date of the instant motion from November 20, 2019 to December 4, 2019 to afford defendant additional time to file and serve its response (see Martinelli Correspondence, dated November 18, 2019). Although the Court granted defendant's request for the adjournment, defendant has failed to respond to the motion (see Broad Correspondence, dated November 19, 2019).
Claimant avers that on or about July 13, 2019, he served defendant with a discovery demand and two sets of interrogatories and requested responses no later than August 5, 2019 (see Ayala Affidavit, ¶ 3, 7-8). The discovery demand seeks audio tapes of claimant's disciplinary hearing following the alleged assault, a copy of an appellate decision related to the subsequent disciplinary determination, video footage of the alleged assault, and the names of the correction officers present during the alleged assault (see Ayala Affidavit, unenumerated attachments [First Set of Demands for Discovery, dated July 8, 2019]). The first set of interrogatories requests information regarding the number of correction officers who were supposed to be present and who actually were present and/or responded to the alleged assault, and what code or alert was called during the alleged assault (see id. [First Set of Interrogatories, dated July 8, 2019]). The second set of interrogatories requests information regarding what correction officers observed during the alleged assault and the alleged attacker's history of assaultive behavior (see id. [Second Set of Interrogatories, dated July 8, 2019]).
Claimant was issued an inmate misbehavior report following the alleged assault in which he was charged with violating disciplinary rules 106.10 (refusing a direct order), 100.13 (fighting), 104.13 (creating a disturbance), and 104.11 (violent conduct) (see Ayala Affidavit, unenumerated attachments [Notice for Admission as to Matters of Facts, Papers, Documen(ts), etc., dated July 8, 2019]). Following a disciplinary hearing, claimant was found guilty only of violating rule 104.13 (creating a disturbance) and received eighteen days of keeplock confinement and loss of privileges (see id.).
Claimant avers that the responses to his discovery demand and interrogatories "would serve as a basis for either eliminating specific claims and defenses as alleged by each party throughout this litigation" or "conversely support them as a basis for expediting the case in a timely manner without unnecessary delay" (id., at ¶ 4 [emphasis in original]; see id. at ¶ 9). Although he does not state it explicitly, it is apparent from claimant's submission that defendant has not responded to claimant's discovery demand or interrogatories. Claimant argues that his demands are likely to lead to the disclosure of relevant evidence and that the documents he requests should be readily available to defendant (see id. at ¶¶ 12-14), and he requests that the Court set a date certain for defendant to respond to his discovery demand and interrogatories (see id. at ¶¶ 17-18).
To the extent claimant argues that defendant should be deemed to have admitted the genuineness of certain documents enumerated in a notice to admit dated July 8, 2019 (see id. at ¶¶ 15-16, Exhibit 10), 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" (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, in that 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.). Because far more than twenty days have passed since claimant served defendant with the notice to admit, the genuineness of the documents enumerated in the notice to admit is deemed admitted (see Matter of Molyneaux, 137 AD2d 864, 865 [3d Dept 1988]; Great American Ins. Co. v Matzen Const., Inc., 114 AD2d 625, 626 [3d Dept 1985]).
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 and interrogatories within twenty days of their service (see CPLR 3122 [a] [1], 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). Claimant's requests 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 claimant's discovery demands and interrogatories or a response to claimant's motion, claimant's motion will be granted on default. Defendant will be directed to answer claimant's discovery demand and first and second sets of interrogatories, except that it may seek a protective order on the ground that a requested document, recording, or 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]).
Finally, to the extent claimant seeks the imposition of sanctions for defendant's failure to respond to the discovery demand and interrogatories (see Ayala Affidavit, ¶ 17), that request will be denied. Although defendant's failure to respond to claimant's demands within twenty days of their receipt is not countenanced by the Court, sanctions are not warranted in this matter inasmuch as claimant makes no argument that defendant's failure to respond to his demands constitutes frivolous conduct within the meaning of 22 NYCRR § 130-1.1 (c).
Accordingly, it is
ORDERED, that claimant's motion number M-94643 is GRANTED, and defendant shall, within twenty (20) days of the date of filing of this decision and order, respond to claimant's discovery request and interrogatories dated July 8, 2019.
December 9, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim number 132983, filed April 24, 2019, with unenumerated exhibits; 2. Verified Answer, filed May 6, 2019; 3. Motion to Compel Discovery, dated July 2019; 4. Affidavit of Latonio Ayala in Support of Motion to Compel Discovery, sworn to August 23, 2019, with unenumerated exhibits; 5. Affidavit of Service of Latonio Ayala, sworn to September 6, 2019; 6. Correspondence of Susan Martinelli, dated November 18, 2019; 7. Correspondence of Kimberley Broad, Principal Law Clerk, dated November 19, 2019.