Opinion
No. 2021-05325 Index No. 601712/19
12-13-2023
American Builders & Contractors Supply Co., Inc., etc., plaintiff, v. Vinyl is Final, Inc., et al., respondents, Vinyl is Final Home Improvement, Inc., et al., appellants.
Faruqi & Faruqi, LLP (The Altman Law Firm, PLLC, Woodmere, NY [Michael T. Altman], of counsel), for appellants. Michael A. Haskel, Mineola, NY, for respondents.
Faruqi & Faruqi, LLP (The Altman Law Firm, PLLC, Woodmere, NY [Michael T. Altman], of counsel), for appellants.
Michael A. Haskel, Mineola, NY, for respondents.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendants Vinyl is Final Home Improvement, Inc., and Eric Jahrnes appeal from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered June 14, 2021. The order granted the motion of the defendants Vinyl is Final, Inc., and Glen Lindon to deem admitted by the defendants Vinyl is Final Home Improvement, Inc., and Eric Jahrnes the facts stated in a notice to admit issued by the defendants Vinyl is Final, Inc., and Glen Lindon, and denied the cross-motion of the defendants Vinyl is Final Home Improvement, Inc., and Eric Jahrnes, in effect, pursuant to CPLR 3103(a) for a protective order striking the notice to admit.
ORDERED that the order is reversed, on the law, with costs, the motion of the defendants Vinyl is Final, Inc., and Glen Lindon to deem admitted by the defendants Vinyl is Final Home Improvement, Inc., and Eric Jahrnes the facts stated in the notice to admit is denied, and the cross-motion of the defendants Vinyl is Final Home Improvement, Inc., and Eric Jahrnes, in effect, pursuant to CPLR 3103(a) for a protective order striking the notice to admit is granted.
The plaintiff, a supplier of construction materials, commenced this action, inter alia, to recover damages for breach of contract against the defendants Vinyl is Final, Inc. (hereinafter Vinyl), and Glen Lindon (hereinafter together the Lindon defendants). In June 2019, the plaintiff filed an amended complaint adding the defendants Vinyl is Final Home Improvement, Inc. (hereinafter Home Improvement), and Eric Jahrnes (hereinafter together the Jahrnes defendants), alleging, inter alia, that certain construction materials it sold and delivered were purchased and delivered to either the Lindon defendants or the Jahrnes defendants. In June 2020, the Lindon defendants served the Jahrnes defendants with a 101-item notice to admit seeking admissions that the goods described in attached invoices were purchased by Home Improvement, and the goods described in attached shipping tickets were delivered at the direction of Home Improvement and used or disposed of by Home Improvement. The Lindon defendants thereafter moved to deem admitted by the Jahrnes defendants the facts stated in the notice to admit, and the Jahrnes defendants cross-moved, in effect, pursuant to CPLR 3103(a) for a protective order striking the notice to admit. In an order entered June 14, 2021, the Supreme Court granted the motion and denied the cross-motion.
CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted (see generally 32nd Ave. LLC v Angelo Holding Corp., 134 A.D.3d 696; Hernandez v City of New York, 95 A.D.3d 793). However, the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of (see Priceless Custom Homes, Inc. v O'Neill, 104 A.D.3d 664; HSBC Bank USA, N.A. v Halls, 98 A.D.3d 718; Taylor v Blair, 116 A.D.2d 204). A notice to admit is not to be employed to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts (see Priceless Custom Homes, Inc. v O'Neill, 104 A.D.3d at 665; HSBC Bank USA, N.A. v Halls, 98 A.D.3d at 721; Nacherlilla v Prospect Park Alliance, Inc., 88 A.D.3d 770, 772).
Here, as the Jahrnes defendants correctly contend, the notice to admit at issue sought concessions that go to the essence of the controversy between them and the Lindon defendants, to wit, whether the goods sold by the plaintiff were purchased by and delivered to either Vinyl or Home Improvement. Thus, the Lindon defendants could not have reasonably believed that the admissions they sought were not in substantial dispute (see Nacherlilla v Prospect Park Alliance, Inc., 88 A.D.3d at 772), and the notice to admit was palpably improper (see Williams v City of New York, 125 A.D.3d 767; HSBC Bank USA, N.A. v Halls, 98 A.D.3d at 721). Moreover, the information sought in the notice to admit may be obtained through discovery, including depositions (see Altman v Kelly, 128 A.D.3d 741, 743).
Accordingly, the Supreme Court should have denied the Lindon defendants' motion to deem admitted by the Jahrnes defendants the facts stated in the notice to admit, and granted the Jahrnes defendants' cross-motion, in effect, pursuant to CPLR 3103(a) for a protective order striking the notice to admit.
DUFFY, J.P., MILLER, WOOTEN and LOVE, JJ., concur.