Opinion
# 2012-045-036 Claim No. 120485 Motion No. M-82001
11-19-2012
DONALD ROZZ v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to file a late claim. Case information
UID: 2012-045-036 Claimant(s): DONALD ROZZ Claimant short name: ROZZ Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120485 Motion number(s): M-82001 Cross-motion number(s): Judge: GINA M. LOPEZ-SUMMA Claimant's attorney: Donald Rozz, Pro Se Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Susan M. Connolly, Assistant Attorney General Third-party defendant's attorney: Signature date: November 19, 2012 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affidavit with annexed Exhibits 1-14, Defendant's Affirmation in Opposition with annexed Exhibits A-E and Claimant's Reply Affidavit with annexed Exhibits 15-18 and CD.
Claimant, Donald Rozz, has brought a motion seeking an order pursuant to: (1) CPLR 3215, directing the clerk of the court to enter default judgment against defendant, the State of New York, on the grounds that defendant failed to timely serve a verified answer in this matter; (2) CPLR 3124, compelling defendant to properly respond to claimant's first set of interrogatories and document demands dated December 27, 2011; (3) CPLR 3126, sanctioning defendant for its willfully failing to respond to the first set of interrogatories which were court ordered; (4) CPLR 3103(a) and (c), limiting defendant from using any further discovery devices without leave of this court, suppressing all disclosure defendant has thus far obtained from claimant and deeming claimant to have fully complied with all of his discovery obligations in this action.
The underlying claim in this matter concerns a motor vehicle accident which occurred on October 24, 2009 at approximately 4:15 a.m. on New York State Route 135, also known as the Seaford-Oyster Bay Expressway (SOB). In the Verified Claim, claimant describes the SOB as a six-lane, two-shoulder highway divided in the middle by a three-foot high concrete divider wall extending the length of the highway. Claimant alleges that at the time of the accident, his vehicle was traveling on the SOB when it came into contact with parts of an automobile that remained on the highway from an earlier accident which occurred there on October 18, 2009. The contact with the automobile parts caused claimant's vehicle to collide with the concrete divider wall.
Claimant served the Verified Claim upon defendant on October 17, 2011 which listed his address as 172 Caroline Avenue, Garden City, NY 11530. On November 16, 2011, defendant attempted to serve its Verified Answer upon claimant by mail at 1476 Hancock Street, Elmont, New York 11003. At his deposition claimant conceded that he also owns the house located at that address.
By letter dated December 23, 2011 and received by defendant on December 29, 2011, claimant informed defendant that the Verified Answer may have been mailed to a different address than the one listed on the Verified Claim. In the letter claimant requested defendant to serve the Verified Answer at the address listed on the Verified Claim. In response defendant served its Verified Answer on claimant on January 3, 2012 at the address listed in the Verified Claim.
The Uniform Rules for the Court of Claims require defendant to either serve a Verified Answer or a motion within 40 days of the service of the Verified Claim (see 22 NYCRR § 206.7[a]). Defendant is not in compliance with this rule as claimant was not served with the Verified Answer until January 3, 2012, 78 days after service of the Verified Claim. Claimant, demonstrating laudable conduct, requested defendant to serve the Verified Answer upon him at the appropriate location. Nevertheless claimant's failure to reject the Verified Answer when it was served constituted a waiver of the late service and any default (Ligotti v Wilson, 287 AD2d 550 [2d Dept 2001]; Pena-Vazquez v Beharry, 82 AD3d 649 [1st Dept 2011]).
On December 27, 2011, claimant served a discovery document on defendant entitled, Claimant's First Set of Interrogatories, Document Demands, and Requests to Admit. Defendant did not respond to the document which resulted in an Order of this Court dated March 1, 2012 directing defendant to respond to the document by March 30, 2012. The Order also directed claimant to respond to any outstanding document requests by the same date. Additionally, claimant was to appear for a deposition on March 29, 2012.
Defendant's response to the Request to Admit portion of the document is not a subject of this motion.
On March 21, 2012, defendant served its response to claimant's discovery requests. Claimant is seeking an Order directing defendant to more properly comply with his discovery requests as well as issuing sanctions against defendant.
A motion to compel responses to demands and interrogatories should not be granted where the demands and interrogatories seek information which is irrelevant, overly broad or burdensome (Accent Collections, Inc. v Cappelli Enterprises, Inc., 84 AD3d 1283 [2d Dept 2011]). The Court is mindful that this action is being pursued by a pro se litigant, however it is clear that much of claimant's demands are written in a manner that renders them palpably improper. Specifically, the Court finds interrogatories 1-49 palpably improper. Nevertheless, defendant provided responses to these demands. The Court finds defendant's responses to Interrogatories 50-58 to have been reasonable and responsive to the questions asked. The Court also finds claimant's document demands numbered 1-13, 21 and 22 to be palpably improper. The Court finds defendant's responses to the remaining document demands to have been reasonable and responsive to the demands. Additionally, the Court also finds that there has been no showing that defendant's conduct was willful, contumacious or in bad faith (id.).
Claimant's remaining contentions are without merit.
Therefore, for the foregoing reasons, claimant's motion is denied in its entirety.
November 19, 2012
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims