Opinion
2012-11-20
Joel STANGER, Plaintiff–Respondent, v. Dawn M. MORGAN, et al., Defendants–Appellants.
McGivney & Kluger, P.C., New York (Michael R. Rawlinson of counsel), for appellants. Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains (Timothy M. Smith of counsel), for respondent.
McGivney & Kluger, P.C., New York (Michael R. Rawlinson of counsel), for appellants. Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains (Timothy M. Smith of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, MOSKOWITZ, RENWICK, FREEDMAN, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered October 4, 2010, which denied defendants' motion for an order to compel plaintiff to accept service of their response to plaintiff's notice to admit nunc pro tunc or, in the alternative, to strike the third item in the notice to admit, unanimously modified, on the law, the third item in the notice stricken, and otherwise affirmed, without costs.
While defendants' brief delay in responding to the notice to admit, which occurred during the substitution of counsel, did not result in any prejudice, the motion court could not have compelled plaintiff to accept the response, as it was unsworn and improperly made “upon information and belief” ( seeCPLR 3123[a]; Rosenfeld v. Vorsanger, 5 A.D.3d 462, 463, 772 N.Y.S.2d 597 [2d Dept.2004] ). Nevertheless, the request for an admission that the defendant driver was on her cellular phone at the time of the accident was palpably improper, as the matter was in dispute and went to the heart of the issue of whether she was negligent in the operation of the subject vehicle ( see New Image Constr., Inc. v. TDR Enters. Inc., 74 A.D.3d 680, 681, 905 N.Y.S.2d 56 [1st Dept.2010];Meadowbrook–Richman, Inc. v. Cicchiello, 273 A.D.2d 6, 709 N.Y.S.2d 521 [1st Dept.2000] ).