Opinion
15135/07.
Decided on May 30, 2008.
The plaintiff is represented by Mark J. Rayo, P.C., by Mark Rayo, Esq., of counsel, the defendant City of New York City, is represented by Michael A.Cardozo, Corporation Counsel of the City of New York by Dana Wiczyk, Esq., of counsel.
Plaintiff Jason Rayo ("Rayo") moves pursuant to CPLR § 3123(a) to strike the defendant the City of New York's (the City") response to the notice to admit and deem the allegations as admitted. The defendant City cross moves for a protective order pursuant to CPLR § 3103 to strike paragraphs 3 and 4 of plaintiff's notice to admit, dated December 18, 2007.
Plaintiff was allegedly caused to trip and fall on the sidewalk adjacent to a grating in front of 210 Joralemon Street, Brooklyn, New York. On May 2, 2007, a lawsuit was commenced against the defendants the City and the New York City Transit Authority. The City served an answer on June 8, 2007 and the defendant New York City Transit Authority's motion for summary judgment was granted on January 25, 2008.
On December 18, 2007, plaintiff served a Notice to Admit on the City and the City provided a response within twenty five (25) days of being served, as opposed to twenty (20) days as required by the CPLR for the response. In its response, the City denied the allegations in paragraph 3 and 4 of the Notice to Admit. The response was verified by an attorney not by a person with personal knowledge of the facts.
Plaintiff now moves to strike the response because it was served five (5) days late and the response was not verified by a person with personal knowledge of the facts. The City cross moves for a protective order with respect to paragraphs 3 and 4 arguing that they are not proper requests within the meaning of CPLR § 3123. Although CPLR § 3123(a) requires a party to submit a sworn response as to the specific matters requested in a Notice to Admit, the Court will consider the City's cross-motion to determine whether the admissions requested in paragraph 3 and 4 are proper requests.
With respect to plaintiff's argument that the items are deemed admitted because the reponse was served late, the Court in its discretion will not treat the response of the City as a nullity merely because it was served five (5) days after CPLR § 3223(a) requires. Furthermore, the late service of the response can be treated as a default and therefore, the Court finds that the plaintiff has not been prejudiced by the late service of the response and the cross motion by defendant in response to the Notice to Admit. ( Redman v State, 2 Misc 2d 766 [ 1956], In re Moroney's Estate, 203 Misc. 557, 118 NYS2d [1952]).The Court finds that the City's cross-motion for a protective order to strike the Notice to Admit is a proper response to plaintiff's motion to strike as CPLR § 3103 provides for such relief. ( Wolin v St. Vincent's Hosp. And Medical Center of New York, [1st Dept 2003], Taylor v Blair, 116 AD2d 204 [ 1st Dept 1980]).
The Court will now address the question of the propriety of the requests contained in the Notice to Admit. Paragraphs 3 and 4 of the Notice to Admit read as follows;
3 . The defendants THE CITY OF NEW YORK, performed maintenance, repairs and or construction which created a patch in the public sidewalk directly adjacent to the grating(s) on the public sidewalk abutting the Municipal Building at 210 Joralemon Street, on the east side of Court Street, 92 feet South of the southeast corner of Court Street and Joralemon Street and 17 feet East of the easterly curb of Court Street, Brooklyn, New York located in the County of Kings, City and State of New York on or before October 30, 2006.
4. Defendant THE CITY OF NEW YORK had a special use of the sidewalk grating(s) and/or appurtenance directly adjacent to the public sidewalk abutting the Municipal Building at 210 Joralemon Street, on the east side of Court Street, 92 feet South of the southeast corner of Court Street and Joralemon Street and 17 feet East of the easterly curb of Court Street, Brooklyn, New York located in the County of Kings, City and State of New York on and for at least ten (10) years before October 30, 2006.
CPLR § 3123(a) in pertinent part states;
a) Notice to admit: . . . At any time after service of the answer, a party. . . . . . . . . . . . . . may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, 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.
A Notice to Admit is meant to eliminate from litigation the matters which will not be in dispute at trial. ( DeSilva v Rosenberg, 236 AD2d 508 [2d Dept 1997]) A Notice to Admit that goes to the heart of matters at issue is improper, ( DeSilva v Rosenberg, 236 AD2d 508, [ 2d Dept 1997], Kalabovic v Fort Place Coop, 159 AD2d 609, [ 2d Dept 1990], Batchie v Travelers Ins. Co., 110 AD2d 864 [ 2d Dept 1985].) It is not intended to request "admission of material issues or ultimate conclusory facts" which can only be made after a full and complete trial. ( Villa v New York City Hous. Auth., 107 AD2d 619, [ 1st Dept 1985]).
Plaintiff first argues that paragraphs 3 and 4 of the Notice to Admit are requests to have the City admit that they performed a "specific action", citing Rosenfeld v Vorsanger , 5 AD3d 462 (2d Dept 2004) and Watson by Watson v City of New York, 178 AD2d 126 [1st Dept 1991] . The Court finds that in Rosenfeld there was a request to acknowledge that a specific document had been faxed and is altogether different from asking the City to admit they maintained, repaired, did construction at, managed, controlled and had a special use of a sidewalk. Equally inapplicable is the Watson case as the Notice to Admit in that case involved the ownership of an apartment and a deed relating to said ownership of the property, which is clearly distinguishable from issues concerning "maintenance, repairs or construction which created a patch" on a sidewalk.
Additionally, the plaintiff asserts that because in a prior lawsuit, Betty Lewin v City of New York, Index Number 562/1998, which involved an accident at the same location, where the superintendent of the building located at 210 Joralemon Street, Brooklyn, testified that the City made repairs and that the City enjoyed special use of the gratings, that the issues presented in the Notice of Claim are the same "specific actions" as arose in that 1998 case, which now just need to be admitted by the City. In essence, plaintiff is not seeking the admission of the truth of matters of fact as contemplated in CPLR § 3123 (a) but instead an admission of the elements of the tort of negligence i.e. "performed maintenance, repairs, and construction" relating to a sidewalk as well as admission of a "special use" of a sidewalk. The Court finds that these "specific actions", the control and special use, go to the heart of matters at issue and request the ultimate conclusory facts and issues of law of the case. Moreover, the fact that the City may have given testimony in a prior lawsuit does not lead to the conclusion that eight years later the conditions, repairs, use and control relating to the sidewalk are the same.
Furthermore, the Notice to Admit is not to be used as a substitute for existing
discovery devices. ( Jonas v Liberty Lines Transit, Inc., 142 AD2d 554 [2nd Dept 1988].)
The City has entered into a preliminary conference order agreeing to provide documentary disclosure and to provide witnesses for deposition to provide testimony relating to the issues raised in the plaintiff's Notice to Admit. Therefore, the Court denies the plaintiff's motion to strike the defendants response to the Notice to Admit and deem the allegations admitted and grants the City's cross motion for a protective order striking paragraphs 3 and 4 from the Notice to Admit.
The foregoing constitutes the decision and Order of the Court.