Opinion
# 2018-032-075 Claim No. 129798 Motion No. M-92269
11-26-2018
NICHOLAS BARTIROMO v. THE STATE OF NEW YORK
Law Office of Melissa Betancourt, P.C. By: Melissa Betancourt, Esq. Morris Duffy Alonso & Faley By: Elizabeth A. Filardi, Esq.
Synopsis
Defendant's motion to strike claimant's notice to admit granted in part and denied in part.
Case information
| UID: | 2018-032-075 |
| Claimant(s): | NICHOLAS BARTIROMO |
| Claimant short name: | BARTIROMO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129798 |
| Motion number(s): | M-92269 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Law Office of Melissa Betancourt, P.C. By: Melissa Betancourt, Esq. |
| Defendant's attorney: | Morris Duffy Alonso & Faley By: Elizabeth A. Filardi, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | November 26, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim on June 7, 2017, seeking damages for injuries sustained while claimant was playing basketball within the West Quad building on the campus of Brooklyn College (Verified Claim ¶ 3). While claimant was playing basketball, he sustained injuries to his left pinky finger when his outstretched hand came into contact with a defective and/or broken radiator cover (Verified Claim ¶¶ 3-4). On or about October 11, 2017, claimant served a "Notice to Admit" upon defendant containing 45 enumerated statements (Filardi Aff. ¶ 4; Filardi Aff. Exhibit E). On October 25, 2017, defendant filed a Response to the Notice to Admit, objecting to paragraphs 26 through 35 of the Notice to Admit (Filardi Aff. Exhibit F). Paragraphs 26 to 35 contain the following statements:
26. On April 20, 2017, Defendant the City University of New York owned premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
27. On April 20, 2017, Defendant the City University of New York leased premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
28. On April 20, 2017, Defendant the City University of New York operated premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
29. On April 20, 2017, Defendant the City University of New York controlled premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
30. On April 20, 2017, Defendant the City University of New York maintained premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
31. On April 20, 2017, Defendant the City University of New York managed premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
32. On April 20, 2017, Defendant the City University of New York inspected premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
33. On April 20, 2017, Defendant the City University of New York repaired premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
34. On April 20, 2017, Defendant the City University of New York serviced premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
35. On April 20, 2017, Defendant the City University of New York supplied [materials, equipment, machinery, etc.] to premises known as West Quad Center located at Brooklyn College, 2900 Bedford Avenue, West Quad Building, County of Kings and State of New York.
Defendant objected to paragraphs 26 through 35 as follows:
"Objection. This answering defendant object [sic] to this demand as vague and that [sic] fact that this issue goes to the ultimate issue of the lawsuit [sic]. New Image Const., Inc. v. TDR Enterprises, 74 A.D.3d 680, 681 (1st Dept. 2010) (The plaintiff's Notice to Admit was deemed improper as it impermissibly "compel[ed] admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial"); Sagiv v. Gamache, 26 A.D.3d 368 (2nd Dept. 2006) (granting a protective order where the allegations in the plaintiff's Notice to Admit went to the core of the dispute); Tolchin v. Glaser, 47 A.D.3d 922 (2nd Dept. 2008) (granting a protective order where the plaintiff's Notice to Admit sought information which could be more properly obtained at an Examination Before Trial.)"
Defendant now moves to strike Claimant's Notice to Admit and for a protective order pursuant to CPLR 3103.
CPLR 3123 (a) states 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." "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" (DeSilva v Rosenberg, 236 AD2d 508, 509 [2d Dept. 1997]). "In other words, the purpose of the notice to admit is to eliminate dispute as to matters of fact that have already been discovered so that the trial of the matter may be streamlined" (Anekwe v State of New York, UID No. 2018-038-539 [Ct Cl, DeBow, J., Apr. 12, 2018]). However, a notice to admit is not to be used in lieu of other disclosure devices, such as depositions (DeSilva, supra, at 509).
First, the Court notes that defendant provided to claimant a lease agreement concerning ownership of the subject premises (Defendant's Reply ¶ 8; Defendant's Reply Exhibit A). Accordingly, the statements set forth in paragraphs 26 and 27 are likely within defendant's knowledge and can be easily answered pursuant to CPLR 3123 (a) (see Anekwe v State of New York, UID No. 2018-038-539 [Ct Cl, DeBow, J., Apr. 12, 2018]). Thus, the Court finds that paragraphs 26 and 27 are not improper. However, the Court reaches a different conclusion as to the statements contained in paragraphs 28 through 35. The claim alleges that defendant CUNY and previously-named defendant Brooklyn College were negligent in the ownership, management, maintenance, operation and control of the subject premises (Verified Claim ¶ 2). This allegation was denied in its entirety in CUNY's Verified Answer (Verified Answer ¶ 2). Thus, it cannot be said that there is no substantial dispute as to the truth of the statements set forth in paragraphs 28 through 35 of claimant's Notice to Admit. As such, claimant's attempt to seek admissions that defendant CUNY operated, controlled, maintained, managed, inspected, repaired, serviced, and supplied the subject premises go to "the heart of the controversy" and are therefore improper (Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 772 [2d Dept. 2011], quoting DeSilva v Rosenberg, 236 AD2d at 508; see also Gaustella v State of New York, UID No. 2013-045-019 [Ct Cl, Lopez-Summa, J., May 28, 2013]). Moreover, the terminology used by claimant in paragraphs 28 through 35 is vague and subject to interpretation and would therefore be more properly presented during a deposition (see Gaustella v State of New York, UID No. 2013-045-019 [Ct Cl, Lopez-Summa, J., May 28, 2013]).
Defendant also objected to paragraphs 6 through 25 and 36 through 45 on the ground that the statements sought admissions from defendants State of New York, the Dormitory Authority of the State of New York (DASNY), and Brooklyn College, who are not represented by counsel for CUNY. The Court agrees with defendant's position inasmuch as the Court has dismissed the claim as asserted against these defendants (Bartiromo v City Univ. of New York, Claim No. 129798, Motion No. M-91346 [Ct Cl, Hard, J., Mar. 26, 2018] [dismissing claim against State of New York and Brooklyn College]; Bartiromo v City Univ. of New York, UID No. 2017-032-060 [Ct Cl, Hard, J., Nov. 15, 2017] [dismissing claim against DASNY]), and claimant did not indicate that they oppose defendant's objections to these statements. Thus, paragraphs 6 through 25 and 36 through 45 are stricken.
Paragraph 1 was denied by defendant and claimant has not objected to defendant's denial in its response to the instant motion. Paragraphs 2 through 5 concern whether the claim was timely served upon defendants within the 90 days proscribed by Court of Claims Act § 10 (3) and have not been addressed by claimant in their response papers. However, to the extent that claimant seeks the admission of such statements to preempt any attempt by defendant to assert that the claim was untimely served, such effort is unnecessary. Court of Claims Act § 11 (c) states that where an objection or defense is based upon a failure to timely serve the claim, such defense "is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required, or in the responsive pleading . . ." Here, defendant's verified answer did not raise a timeliness defense. Thus, to the extent claimant has not argued in opposition to defendant's objection to paragraphs 2 through 5, the Court strikes those statements.
Accordingly, it is hereby
ORDERED that defendant's motion (M-92269) is granted in part, and items numbered 2 through 25 and 28 through 45 are deemed STRICKEN; and it is further
ORDERED that defendant's motion (M-92269) is denied in all other respects; and it is further
ORDERED that defendant shall have twenty (20) days from the date of filing of this Decision and Order to address items numbered 26 and 27 in claimant's Notice to Admit dated October 11, 2017.
November 26, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated April 27, 2018; and Affirmation in Support, affirmed by Elizabeth A. Filardi, Esq. on April 27, 2018, with Exhibits A through G annexed thereto. 2. Affirmation in Opposition, affirmed by Melissa Betancourt, Esq., filed on June 28, 2018. 3. Affirmation in Reply, affirmed by Elizabeth A. Filardi, Esq. on August 14, 2018, with Exhibit A annexed thereto.