The court consolidates the motions sequentially numbered 007, 008, 009, and 010 for purposes of decision.

Plaintiff, who is self-represented, is a tenured New York City public school teacher. In November 2004, his then-attorney commenced an action on his behalf against the above-named defendants which, after intervening motion practice, now consists of a claim for breach of a settlement agreement as against the City and the Department of Education (DOE), and a claim of violation of due process rights as against the City, the DOE, and the individual defendants Hallet and Europe in their official capacities. Issue was joined by the filing of a verified answer in August 2006.

In motion sequence 007, plaintiff moves for a declaration ("declaratory judgment") that the March 18, 2003 "Post-Charge Stipulation Settlement," signed by him and the Department of Education (OSC. Ex. A), is valid and binding, and for an order permanently enjoining defendants from not performing under its terms. Defendants oppose, arguing that a declaratory judgment is [*2]inappropriate and unnecessary because the plaintiff has the breach of contract claim which will adequately compensate him. They also argue that plaintiff has not satisfied the requirements for the issuance of a temporary, let alone a permanent injunction.

In motion sequence 008, plaintiff moves for leave to amend his complaint to add a claim for declaratory relief, specifically that the court issue a declaration that the Settlement Stipulation is a contract which both sides are bound by, and that defendants have breached the agreement in various ways. He attaches a proposed Amended Complaint. Defendants oppose, arguing that a claim for declaratory relief is inappropriate and not necessary, and that the proposed amended complaint improperly seeks to add three additional individual defendants and a third charge of retaliatory discrimination pursuant to 42 USC § 1983.

In motion sequence 009, plaintiff moves for an order to compel defendants to answer the interrogatories filed on October 13, 2006. Defendants oppose.

In motion sequence 010, plaintiff moves for partial summary judgment. Defendants cross-move to amend their verified answer and for summary judgment, and in opposition to plaintiff's motion.^[FN1]

Motion Sequence 007

A discretionary judgment is a discretionary remedy (Bareham v City of Rochester, 246 NY 140, 143 [1927]). Where the facts are undisputed and pure questions of law are present, a declaratory judgment is appropriate (Dun & Bradstreet v City of NY, 276 NY 198, 207 [1937]). Where there are disputed questions of fact, the court may decline to render a declaratory judgment (Castro Convertible Corp. v Gordon Props., Inc., 28 Misc 2d 5, 7 [Sup. Ct., Nassau County 1961]). The plaintiff bears the burden of affirmatively proving its right to the declaratory relief (see, Mount Vernon Fire Ins. Co. v NIBA Constr. Inc., 195 AD2d 425, 425 [1st Dept. 1993]). It is well settled that declaratory relief may be denied where another conventional remedy is available (Zucker v Hirschl & Adler Galleries, 170 Misc 2d 426, 434 [Sup. Ct., New York County 1996], citing Young & Co. v Fleischman, 85 AD2d 571, 571 [1st Dept. 1981]). Only if the available remedy is not adequate or effective, should a declaratory judgment be entertained (Rockland Light & Power Co. v City of NY, 289 NY 45 [1942]).

A mandatory temporary injunction is not ordinarily granted where the effect would be to grant to the plaintiff the same relief which may be ultimately obtained after a trial on the merits (Bachman v Harrington, 184 NY 458, 464 [1906]; Rosa Hair Stylists v Jaber Food Corp., 218 AD2d 793, 794 [2d Dept. 1995]). A permanent injunction cannot be issued in advance of trial or summary judgment (Oppenheim v Thanasoulis, 123 App. Div. 494 [1st Dept. 1908]). For injunctive relief, the movant must establish a likelihood of success on the merits, that he or she will suffer irreparable harm if the injunction is not granted, and that the equities are in the movant's favor (Doe v Axelrod, 72 NY2d 748, 750 [1988]). The movant must provide affidavits [*3]and other competent proof, with evidentiary detail, that establish these elements and if key facts are in dispute, the relief must be denied (Scotto v Mei, 219 AD2d 181, 182 [1st Dept. 1996]).

Here, to the extent that plaintiff seeks a declaration that the Settlement Stipulation is a binding agreement, such goes without saying. The gravamen of plaintiff's litigation is that defendants have breached the agreement.^[FN2] An examination of the verified complaint and verified answer shows that defendants deny many of the allegations, for instance as concerns the failure to change the "U" ratings (see Ver. Compl. ¶ 26, Ver. Ans. ¶ 26). They deny plaintiff's characterization of the terms of the agreement (see, e.g., Ver. Compl. ¶¶ 29-33, and Ver. Ans. ¶¶ 29-33). As there are disputed issues of fact concerning the actions of both plaintiff and defendants following the signing of the Settlement Stipulation, and as plaintiff has a breach of contract claim, the court will not issue a declaration as concerns the Settlement Stipulation. Additionally, it cannot issue any sort of injunctive relief as he has not shown that he will suffer irreparable harm if the injunction is not granted, given that what harm has already occurred seems to be the subject of plaintiff's claim for monetary damages based on breach of contract. Plaintiff's motion seeking declaratory and injunctive relief is denied.

Motion Sequence 008

Pursuant to CPLR 3025(b), "leave to amend the pleadings shall be freely given, absent prejudice or surprise resulting from the delay" (see, McCaskey, Davies & Assoc., Inc. v New York City Health & Hosp. Corp., 59 NY2d 755, 757 [1983]). The burden is on the opposing party to show prejudice (Leslie v Hymes, 60 AD2d 564 [1st Dept. 1977]). Amendment will not be permitted as a means of reviving a time-barred cause of action (Bergman v Indemnity Ins. Co. of No. America, 275 AD2d 675, 676 [1st Dept. 2000]). Leave will be denied where the proposed amendment is totally devoid of merit or is palpably insufficient as a matter of law (Glaser v County of Orange, 20 AD3d 506, 506 [2d Dept. 2005]). The court must pass on the validity of the cause of action as amended (East Asiatic Co. Inc. v Corash, 34 AD2d 432, 434 [1st Dept. 1970]). The court should not permit futile amendments which may lead to needless litigation (Saferstein v Mideast Sys. Ltd., 143 AD2d 82, 83 [2d Dept.1988]).

Plaintiff's motion for leave to amend his complaint to add a claim for declaratory relief is denied, because the breach of contract claim sufficiently provides an adequate remedy (see, Singer Asset Financ. Co., LLC v Melvin, 33 AD3d 355, 358 [1st Dept. 2006]). His notice of motion failed to state, pursuant to CPLR 2214 (a), that he sought to amend his complaint to add three additional individual defendants and claims of retaliatory discrimination and deprivation of due process rights. Even overlooking this error, the court notes that it previously denied plaintiff's motion to add the same three defendants, and upon motion to reargue, adhered to its decision (Dec. and Order of May 15, 2007; Dec. & Order of Dec. 21, 2007). These decisions [*4]also discussed plaintiff's motion to add a claim of retaliation, which was denied upon reargument on the bases that plaintiff had not sufficiently alleged that the actions taken by the municipal defendants were retaliatory rather than an outgrowth of the breach of the agreement, and because his other allegations were generalized and without specificity as concerns, for example, the making of defamatory comments about him (Dec. & Order of Dec. 21, 2007, p. 4).

Even overlooking plaintiff's failure to give proper notice that he seeks to amend his complaint to add a retaliation claim, the proposed amendment does not remedy the flaws previously discussed by the court. The proposed complaint alleges, in part, that he was accused of "trying to start trouble," and that it was announced in the presence of the entire professional staff of his school that he did not have a work assignment and would not be getting one, and that there were meetings and discussions at which negative comments were made about him. It alleges that he has been socially isolated, and that there has been an agreement to create a hostile work environment because of the instant lawsuit. These allegations are insufficient to allege retaliation rather than the outgrowth of the breach of the Stipulation, and the generalized statement that there was an agreement to create a hostile environment is simply too conclusory to provide a basis for a cause of action sounding in retaliation or employment discrimination.

For all these reasons, plaintiff's motion to amend his complaint is denied.

Motion Sequence 009

Article 31 of the CPLR governs discovery. In general, there shall be "full disclosure of all matter material and necessary" to prosecute or defend an action (CPLR 3101[a]). Discovery procedures are to be liberally construed (Rios v Donovan, 21 AD2d 409 [1st Dept 1964]). The words "material and necessary" have been interpreted to "require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publishing Co, 21 NY2d 403, 406 [1968], emphasis added). Full disclosure permits disclosure between all parties in the litigation regardless of the burden of proof (Lombardo v Pecora, 23 AD2d 460 [2d Dept 1965]).

Certain matter is not discoverable. Privileged matter, attorney's work product, and material prepared for litigation are not discoverable (Barber v Town of Northumberland, 88 AD2d 712 [3rd Dept 1982]). If a party claims exemption or immunity of particular records, that party has the burden of justifying it (Zimmerman v Nassau Hospital, 76 AD2d 921 [2d Dept 1980]). This burden is imposed because full disclosure is favored as a matter of public policy (Koump v Smith, 25 NY2d 287, 294 [1969]).

CPLR 3130 and 3131 govern the use and scope of interrogatories, and CPLR 3133 concerns answers and objections to interrogatories. Interrogatories seek evidentiary matter (Mazin v Mazin, 93 AD2d 881 [2d Dept. 1983]). Interrogatories may relate to any matters that fall under the disclosure requirements of CPLR 3101, and the answers may be used to the same extent as the depositions of a party (CPLR 3131).Where interrogatories call for opinions or conclusions of law, rather than relevant fact, they should be stricken (Lilling Syracuse Bros. Corp., 114 AD2d 938 [2d Dept.1985]). Where they are palpably improper as by being unduly broad or burdensome, the remedy is to vacate them without prejudice to the party to serve a proper set (Wyda v Makita Electric Works Ltd., 162 AD2d 133 [1st Dept. 1990]; Bohlen Capital Holdings v Standard Coal Comp., 90 AD2d 476 [1st Dept. 1982]).

Plaintiff moves to compel defendants to answer the interrogatories filed on October 13, [*5]2006. He also contends that other than his personnel file, no documents have been produced (Pl. Not. of Mot. to Compel Discovery ¶ 9).

Defendants oppose on procedural grounds. They correctly note that plaintiff failed to provide the required affirmation pursuant to Uniform Rule 202.7 stating that he had conferred with defense counsel in good faith about the issues outstanding. They contend that they have provided their objections and responses to the interrogatories, and that plaintiff had indicated that the responses were insufficient but has never followed up with a promised letter to counsel's office detailing his objections. Defendants' attorney submits a copy of a November 21, 2007 letter to plaintiff noting that the attorney had twice asked plaintiff for a letter referencing the interrogatory requests that were at issue, so that they could "investigate the discovery previously produced to you." (Madden Aff. in Opp. to Pl. Mot. to Compel, Ex. B).

Plaintiff denies that he ever agreed to provide a letter and states that as the "entire response to plaintiff's request was unsatisfactory. . . sending a letter would serve no purpose" (Pl. Reply Aff. to Defs'. Aff. in Opp. to Mot. to Compel ¶ 6). He asks this court to review the responses to the interrogatories and determine whether they are adequate.

Plaintiff's motion is improper, given that he has sought court intervention without first responding to defendants' request to specifically indicate which interrogatories were insufficient under the law and has not proffered the Rule 202.7 affirmation. A reading of the responses reveals that many of his interrogatories were objected to on grounds including that they are overbroad, seek legal conclusions, or assume facts not in evidence, but nonetheless, defendants provided responses that attempted to address the core of plaintiff's interrogatory questions. While he may dislike many of the responses, that does not make them improper or insufficient under the law. For instance, a reference to defendants' website, in response to an interrogatory for "an organization chart for the New York Public School System" is not unresponsive when the interrogatory is not limited as to the time frame, and seeks information better obtained through deposition (Interrogatory No. 2, see Pl. Reply Aff. to Defs'. Aff. in Opp. to Mot. to Compel ¶ 11). Nor, where the interrogatory seeks a statement as to whether one defendant or any other DOE official over rescinded the March 18, 2003, letter, is it improper to deny the implicit request to admit the rescission, when such action is at issue, and to refer to his personnel file (Interrogatory No. 59, see Pl. Reply Aff. to Defs'. Aff. in Opp. to Mot. to Compel ¶ 12).

Given the failure to adhere to Uniform Rule 202.7, the court declines to review each interrogatory for legal sufficiency, and denies plaintiff's motion to compel.

Motion Sequence 010

Plaintiff moves for partial summary judgment. Defendants cross-move to amend their answer to assert a defense of lack of capacity to sue, and to dismiss the complaint based on that defense. Defendants' cross-motion was untimely served, as plaintiff correctly points out, but plaintiff apparently did not request additional time to serve opposition to the cross-motion.

To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor (GTF Mtkg, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1985]). Summary judgment is appropriate when there is no genuine issue as to any material fact and the disposition of the causes of action may be decided as a matter of law ( Security Pacific Bus. Credit, Inc. v Peat Marwick Main & Co., 79 NY2d 695, rearg denied 80 NY2d 918 ([1992]). Plaintiff's motion for partial summary judgment is denied. As there are questions of fact as concerns the [*6]parties' actions subsequent to the signing of the Stipulation, summary judgment is inappropriate.

Defendants' motion to amend their answer to add the defense of lack of capacity to sue must be granted. Although the litigation has been underway for four years, and defendants initially answered nearly two years ago, there cannot be found any prejudice to plaintiff who was most certainly aware of his own bankruptcy proceeding. Moreover, the proffered amendment is not devoid of merit nor palpably insufficient (Leszczynski v Kelly & McGlynn, 281 AD2d 519, 519 [2d Dept. 2001]).

Defendants argue that because plaintiff had filed in September 2004 a voluntary petition seeking bankruptcy under Chapter 13 of the Bankrupcty Code, which resulted in a discharge of his debts and the closing of his bankruptcy case in April 2006, but had never listed the instant litigation as a "contingent or unliquidated claim," he is now precluded from pursuing these claims as he cannot sue on his own behalf. They note that prior to filing his petition in bankruptcy, plaintiff had filed his notice of claim against the City of New York in April 2004, seeking "[a]bout $11,000,000.00, as estimate of damages sustained." (Cross-Mot. Ex. B, Notice of Claim). They therefore seek to add a defense of lack of capacity to sue.

The doctrine of judicial estoppel bars a debtor who fails to disclose a claim in bankruptcy proceedings from asserting such claim after emerging from bankruptcy (Kunica v St. Jean Financial, Inc., 233 BR 46, 58-59 [SDNY 1999]). Thus, in Whelan v Longo, 7 NY3d 821 (2007), the fact that the plaintiff failed to disclose her cause of action within her bankruptcy petition deprived her of the legal capacity to sue. So too here, plaintiff never amended his petition to include this litigation as an asset. He therefore lacks the legal capacity to sue defendants, and it is appropriate both to grant defendants' motion for leave to amend their answer to assert the defense of lack of capacity to sue and to grant their cross-motion for summary judgment and dismissal of the complaint (see, Rudin v Hospital for Joint Diseases, 34 AD3d 376 [1st Dept 2006]; Burton v 215 E. 77th Assoc., 284 AD2d 122 [1st Dept. 2001]; Weiss v Goldfeder, 201 AD2d 644 [2d Dept. 1994]).

The cross-motion to amend and for summary judgment is granted despite the City's lack of diligence in motion practice, which has been repeatedly pointed out by plaintiff. However, as it is established that plaintiff does not have the capacity to bring this litigation, it would be a pyrrhic victory for him were the court to deny the City's cross-motion based on its being untimely served. The City would only file a new motion for the same meritorious relief.

Accordingly, for all the above stated reasons, it is

ORDERED that the motions numbered sequence 007, 008, 009, and 010 are denied in their entirety, and it is further

ORDERED that defendants' cross-motion (sequence 010) to amend the Answer to add the affirmative defense of lack of capacity to sue, and for summary judgment based on that affirmative defense is granted, and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the court.

Dated: April 1, 2008____________________________________

New York, New YorkJ.S.C.