Opinion
Index No.: 110922/02
12-14-2011
GRACE LING, Plaintiff, v. IRIS TSUNG, M.D., and NEW
YORK UNIVERSITY DOWNTOWN HOSPITAL, Defendants.
DECISION & ORDER
JOAN B. CAREY, J.:
Introduction
Motion by defendant Iris Tsung, M.D., for a protective order pursuant to CPLR 3103(a) striking the plaintiff's notice to admit, dated November 19, 2003, served on Tsung.
Facts & Procedural Posture
The plaintiff commenced the instant action to recover damages for medical malpractice against defendant Iris Tsung, M.D., who served as the plaintiff's obstetrician from January 8, 2000 through the birth of the plaintiff's child on August 28, 2000, and defendant New York University Downtown Hospital (hereinafter the Hospital), the hospital at which the delivery occurred. The plaintiff alleged, among other things, that Dr. Tsung departed from good and accepted medical practice by failing to timely diagnose and treat the plaintiff's allegedly precipitous labor, and negligently administering Pitocin (i.e. drug used to induce labor, and contract uterus).
Following the joinder of issue and some discovery, the plaintiff, by notice to admit (CPLR 3123), dated November 19, 2003, requested Dr. Tsung provide written admissions to the following:
1. In [sic] the morning of August 28, 2000 and prior to the plaintiff's admission to [the Hospital], [Dr. Tsung] received a telephone page from the answering service regarding a call from plaintiff and/or the plaintiff's husband * * *.
2. In [sic] the morning of August 28, 2000 and prior to the plaintiff's admission to [the Hospital], [Dr. Tsung] returned the page and called the plaintiff and/or the plaintiff's husband * * * at their home.
3. In [sic] the morning of August 28, 2000 and prior to the plaintiff's admission to [the Hospital], [Dr. Tsung] called the plaintiff and/or the plaintiff's husband * * * from her office.
4. In [sic] the morning of August 28, 2000 and prior to the plaintiff's admission to [the Hospital], [Dr. Tsung] returned the aforementioned page and called the plaintiff and/or the plaintiff's husband at their home.
5. In [sic] the morning of August 28, 2000 and prior to the plaintiff's admission to [the Hospital], [Dr. Tsung] returned the aforementioned page and contacted the plaintiff and/or the plaintiff's husband * * * via telephone from [the Hospital].
6. In [sic] the morning of August 28, 2000 and prior to the plaintiff's admission to [the Hospital], [Dr. Tsung] returned the page and contacted the plaintiff and/or the plaintiff's husband * * * via her cell phone.
7. In [sic] the morning of August 28, 2000 and prior to the plaintiff's admission to [the Hospital], [Dr. Tsung] spoke with the plaintiff and/or the plaintiff's husband * * * via telephone and was
informed that the plaintiff's water broke and then advised plaintiff to go to [the Hospital].
8. [Dr. Tsung] first examined the plaintiff * * * at approximately 8:30 am the morning [sic] of August 28, 2000 at [the Hospital] and advised the plaintiff that she would probably give birth later on in the afternoon.
9. [Dr. Tsung] saw the plaintiff * * * and her husband * * * at approximately 8:30 am the morning [sic] of August 28, 2000 at [the Hospital] and advised the plaintiff that she would probably give birth later on in the afternoon.
10. [Dr. Tsung] saw the plaintiff * * * and her husband * * * at approximately 8:30 am the morning [sic] of August 28, 2000 at [the Hospital] and stated that she was aware that plaintiff was receiving Pitocin, and that Pitocin was necessary to speed up the contractions.
Dr. Tsung moves for a protective order pursuant to CPLR striking the aforementioned notice to admit. Dr. Tsung maintains that the requested admissions are improper because they touch on issues material to this action, which she characterizes as the "ultimate issues" in the case. Dr. Tsung also maintains that the plaintiff is improperly attempting to use the notice to admit as a substitute for traditional disclosure devices (e.g. depositions).
The plaintiff counters that the notice to admit sought admissions pertaining to factual issues not determinative on the ultimate issues in the case, and that the notice to admit may be used in conjunction with other disclosure devices.
Analysis
CPLR 3123(a) provides, in pertinent part, that "a party may serve upon any other party a written request for admission by the latter 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."
"A Notice to Admit is designed to elicit admissions on matters which the requesting party 'reasonably believes there can be no substantial dispute' (CPLR 3123 [a])" (National Union Fire Ins. Co. of Pittsburgh, Pa. v Allen, 232 AD2d 80, 85 [1st Dept. 19971). This device may be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial ( see e.g. Meadowbrook-Richrnan, Inc. v Cicchiello, 273 AD2d 6 [1st Dept. 20001; (National Union Fire Ins. Co. of Pittsbursh, Pa. v Allen, supra; Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453 [1st Dept. 19951; Siegel, NY Prac, § 364, p 573 [3d ed]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3123:l; see also Durst, Jr., et al, Modern New York Discovery, § 13.5, pp 310-311).
Issuance of a protective order striking the notice to admit warranted. As mentioned above, the plaintiff claims that Dr. Tsung departed from good and accepted medical practice by failing to timely diagnose and treat the plaintiff's allegedly precipitous labor, and negligently administering Pitocin. Concomitantly, material issues in this matter include when Dr. Tsung first became aware that the plaintiff's labor had commenced, and at what point on August 28, 2000 Dr. Tsung became responsible, partially or completely, for the plaintiff's medical treatment. In this regard, Dr. Tsung testified at her deposition that she did not recall when she first learned that the plaintiff had been admitted as Dr. Tsung's patient to the Hospital on August 28, 2000. Dr. Tsung also testified that she did not have any contact with the plaintiff until approximately 10:30 am that day. Thus, the plaintiff's notice to admit improperly demanded that Dr. Tsung concede matters that are in dispute (see e.g. Meadowbrook-Richman, Inc, v Cicchiello, supra; see also DeSilva v Rosenberg, 236 AD2d 508 [2d Dept. 1997]; Washington v Alco Auto Sales, 199 AD2d 165 [1st Dept. 19931; Berg v Flower Fifth Ave. Hosp., 102 AD2d 760 [1st Dept. 19841; Valencia v Lenox Hill Hosp., NYLJ, Oct. 31, 2000, at p 29, col 2 [Sup Ct, Kings Co, Belen, J.]).
Moreover, the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions (see DeSilva v Rosenberg, supra; Lewis v Hertz Corp., 193 AD2d 470 [1st Dept. 1993]; Taylor v Blair, 116 AD2d 204 [1st Dept. 1986]; Berg v Flower Fifth Ave. Hosp., supra: see also Ashkenazi v City of New York. 239 AD2d 189 [1st Dept. 19971; Hodes v City of New York. 165 AD2d 168 [1st Dept. 1991]). The plaintiff deposed Dr. Tsung only three months prior to serving the notice to admit, and, during the deposition, questioned Dr. Tsung as to when she first learned that the plaintiff had been admitted to the Hospital as Dr. Tsung's patient, and as to when Dr. Tsung first had contact with the plaintiff. The plaintiff never questioned Dr. Tsung, despite the opportunity and the importance of the inquiry, regarding the purported telephone pages, telephone calls and conversations which were the subject of the notice to admit. Thus, the plaintiff improperly seeks to use the notice to admit to obtain information on issues which, by their nature, must necessarily be explored through other disclosure devices (e.g. deposition).
Conclusion
Based upon the foregoing, it is hereby ORDERED that the motion of the defendant Iris Tsung, M.D., for a protective order pursuant to CPLR 3103 (a) striking the plaintiff's notice to admit, dated November 19, 2003, served on Tsung, is granted and the notice to admit is struck; and it is further,
ORDERED that counsel for each of the parties are to appear before the court on March 18, 2004 at the New York County Courthouse, 111 Centre Street, Room 948, Part 40D, at 11:00 am, for a compliance conference.
____________________________
Hon. Joan B. Carey, Acting JSC
Papers onsidered:
(1) Notice of motion, and accompanying exhibits A-D
(2) Affirmation in opposition, and accompanying exhibit A
(3) Reply affirmation