Opinion
Index No. L & T 50106/20
05-02-2022
SITE 10 COMMUNITY ALLIANCE ASSOCIATES, Petitioner, v. Catherine OWENS, Respondent.
Douglas Acosta, 290 9th Avenue, No.16H, New York, NY 10001, (917) 536 – 6049, Dacostagal@outlook.com, Guardian Ad Litem for Respondent Phillip L. Wartell, Esq., Rose & Rose, 291 Broadway, 13th floor, New York, NY 10007, pwartell@roseandroselaw.com, (212) 349 – 3366
Douglas Acosta, 290 9th Avenue, No.16H, New York, NY 10001, (917) 536 – 6049, Dacostagal@outlook.com, Guardian Ad Litem for Respondent
Phillip L. Wartell, Esq., Rose & Rose, 291 Broadway, 13th floor, New York, NY 10007, pwartell@roseandroselaw.com, (212) 349 – 3366
Frances Ortiz, J.
Recitation as required by CPLR 2219(a), of the papers considered in the review of this Motion:
Papers/Numbered
Notice of Motion & Affirmation 1/NYSCEF 24
Affirmation in Opposition 2/NYSCEF 25
Upon the foregoing cited papers, the Decision/Order of this Motion(s) is as follows:
The motion by Respondent's Guardian Ad Litem ("GAL") for a protective order based on CPLR § 3103 denying a disclosure device - Petitioner's Notice to Admit- is granted for the reasons discussed below.
This is a holdover proceeding based on breach of the lease in a project based Section 8 apartment subject to the regulations of the Department of Housing and Urban Development ("HUD"). Specifically, the notice of termination indicates that Respondent has breached paragraph 13 of the HUD lease argument which states: "The Tenant must live in the unit and the unit must be the Tenant's only place of residence." As such, the heart of the issue of this holdover is Respondent's place of residence.
The proposed Notice to Admit served on Respondent's CPLR Article 12 GAL contains six (6) statements seeking admissions to the truth and correctness of some of the following terms: that Respondent is the tenant of record of the subject premises (332 East 29th Street, apt. 4B, New York, NY 10025); that Respondent currently resides at a nursing facility; that Respondent has resided at a nursing facility in long term care, that Respondent has been residing at the nursing facility since November 15, 2018; that Respondent has no discharge plan from the nursing facility, and that Respondent has had no discharge plan from the nursing facility between November 15, 2018 and the date of the Notice.
CPLR § 3103(a) grants the court the authority on its own initiative or on motion of any party to make a protective order denying, limiting, conditioning or regulating a disclosure device, such as a Notice to Admit. Such protective order is designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts. A party who does not respond to a Notice to Admit is deemed to have admitted to the statements because silence constitutes an admission under CPLR 3123(a) . § 364. Notice to Admit, Siegel, NY Prac. § 364 (6th ed.). If the recipient deems the Notice to Admit unreasonable, then the recipient should promptly move for a protective order determining the issue one way or the other.
Further, a Notice to Admit is used to get a party to admit facts that will not be in dispute at trial and proving a readily admittable fact. Siegel, NY Prac. § 364 (6th ed.). It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. If the statements in the Notice to Admit go to the heart of the matter at issue it is improper. Fetahu v. New Jersey Transit Corp., 167 AD3d 514, 515 (1st Dep't 2018) .
Here, Respondent's GAL moved for a CPLR § 3103 protective order as he deemed the statements made in the Notice to Admit unreasonable and inappropriate, under the circumstances. This Court agrees with such contention. The instant Notice to Admit is undoubtedly improper, since it requires Respondent to admit to what amounts to be the fundamental elements of Petitioner's prima facie case. For instance, the six (6) statements in the Notice relate to Respondent's residence which goes to the heart of the matter in dispute in this holdover proceeding. Therefore, it is inappropriate material for a Notice to Admit. Fetahu v. New Jersey Transit Corp. supra. Moreover, the granting to Respondent of this protective order avoids disadvantage and prejudice to her and her GAL. Permitting disclosure through the instant Notice to Admit would be the equivalent of allowing Petitioner to circumvent its burden of proof at trial and the rules of evidence. Midland Funding LLC v. Valentin, 40 Misc 3d 266, 270 (Nassau Cty, 1st Dist. Ct. 2013) ; CPLR § 3103(a).
Additionally, the Notice to Admit is improper because CPLR § 3123 requires that the party to the action on whom the Notice is served upon admit to the facts within his/her personal knowledge. Here, the CPLR Article 12 GAL (Douglas Acosta) is technically not a party to the case possessing such statutorily required personal knowledge. Instead, he must rely on the party, namely Respondent, to provide admissions to the Notice. The GAL informed the Court at oral argument of the motion that Respondent is mentally incapable of providing him with admissions to the Notice to Admit. As such, CPLR § 3103(a) explicitly provides that the court's granting of such a protective order serves to avoid unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to the Respondent. Hence, here, the granting of such a protective order is appropriate.
Accordingly, for all the reasons discussed above, Respondent's motion for a protective order based on CPLR § 3103 is granted.
The matter will proceed for an in-person trial on June 9, 2022 at 10:00 a.m. in Room 855, Part N/P at 111 Centre Street, New York, NY 10013.
ORDERED: Respondent's motion for a protective order based on CPLR § 3103 is granted.
This is the decision and order of this court. Copies of this decision will be uploaded to NYSCEF.