Opinion
2012-04-27
Timothy VOIGT, doing business as V–Con Company, Plaintiff–Appellant, v. SAVARINO CONSTRUCTION CORPORATION, Defendant–Respondent.
Lipsitz Green Scime Cambria LLP, Buffalo (Patrick J. Mackey of Counsel), for Plaintiff–Appellant. Law Office of Ralph C. Lorigo, West Seneca (Ralph C. Lorigo of Counsel), for Defendant–Respondent.
Lipsitz Green Scime Cambria LLP, Buffalo (Patrick J. Mackey of Counsel), for Plaintiff–Appellant. Law Office of Ralph C. Lorigo, West Seneca (Ralph C. Lorigo of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.
MEMORANDUM:
Plaintiff appeals from an order that denied his motion for, inter alia, summary judgment on the amended complaint and granted the motion of defendant for leave to amend its response to plaintiff's notice to admit. Contrary to plaintiff's contention, Supreme Court did not abuse its discretion in granting defendant leave to amend its responses to the notice to admit. Pursuant to CPLR 3123(a), “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....” The statute further provides that “the court, at any time, may allow a party to amend or withdraw any admission on such terms as may be just” (CPLR 3123[b] ). Here, “[i]n view of the underlying purpose of the notice to admit—‘to eliminate from dispute those matters about which there can be no controversy’ ...—we discern no abuse of discretion in [the court's determination]” ( Webb v. Tire & Brake Distrib., Inc., 13 A.D.3d 835, 838, 786 N.Y.S.2d 636). “A notice to admit which goes to the heart of the matters at issue is improper ... Also, 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 A.D.2d 508, 508–509, 654 N.Y.S.2d 30; see Sagiv v. Gamache, 26 A.D.3d 368, 369, 810 N.Y.S.2d 481; Hawthorne Group v. RRE Ventures, 7 A.D.3d 320, 324, 776 N.Y.S.2d 273). Here, we agree with the court that plaintiff sought admissions to matters that were at the heart of the controversy, and that plaintiff was using the notice to admit in place of other discovery devices. Further, “plaintiff could not have reasonably believed that the admissions which [he] sought ... would not be in ‘substantial dispute at the trial’ as they were identical to certain allegations in [the] complaint and were denied by [defendant] in its answer” ( Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d 770, 772, 930 N.Y.S.2d 643; see also Cazenovia Coll. v. Patterson, 45 A.D.2d 501, 504, 360 N.Y.S.2d 84).
We reject the further contention of plaintiff that the court erred in denying his motion for summary judgment without prejudice to renew upon the completion of discovery. “Where, as here, ‘the facts essential to opposing [plaintiff's] motion may exist but cannot be stated without conducting discovery of employees of [plaintiff] and others, the court [properly denied] the motion pursuant to CPLR 3212(f)’ ” ( Brown v. Krueger, 13 A.D.3d 1182, 1182–1183, 786 N.Y.S.2d 778).
We have considered plaintiff's remaining contention and conclude that it is without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.