Summary
granting a protective order where the plaintiff's Notice to Admit sought information which could be more properly obtained at an Examination Before Trial.
Summary of this case from Bartiromo v. StateOpinion
No. 2007-09873.
January 29, 2008.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated September 26, 2007, which granted the defendants' motion for a protective order and struck the plaintiffs' notices to admit.
Jaroslawicz Jaros, LLC, New York, N.Y. (David Jaroslawicz of counsel), for appellants.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Richard E. Lerner of counsel), for respondents.
Before: Mastro, J.P., Fisher, Florio, Angiolillo and Dickerson, JJ.
Ordered that the order is affirmed, with costs.
"The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial" ( Rosenfeld v Vorsanger, 5 AD3d 462 [citations omitted]; see Glasser v City of New York, 265 AD2d 526; Gomez v Long Is. R.R., 201 AD2d 455, 456). 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 before trial" ( DeSilva v Rosenberg, 236 AD2d 508, 509). Contrary to the plaintiffs' arguments, the notices to admit improperly sought admissions that go to the heart of the matter at issue and were, therefore, properly stricken.