Preview
FILED: QUEENS COUNTY CLERK 03/20/2024 04:06 PM INDEX NO. 702548/2024
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/20/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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SONIA CHANCAY REYES and
MAYTE GOMEZ PALACIOS,
Plaintiffs,
AFFIRMATION
-against-
TAGUIAM CORRINE MANGALI,
SAYA JULIO ROBERTO NUNEZ, JOHN DOE
(first and last name being fictitious and unknown)
and MONSERRATE GOMEZ PALACIOUS,
Defendants.
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CHARLES S. MAILLOUX, an attorney duly licensed to practice law in the Courts of the
State of New York, affirms the following under penalty of perjury:
1. I am an associate with the SCAHILL LAW GROUP, P.C., attorneys of record
for the defendants CORRINE M. TAGUIAM s/h/a TAGUIAM CORRINE MANGALI and JULIO
ROBERTO SAYA s/h/a SAYA JULIO ROBERTO NUNEZ, and as such, I am fully familiar with
the facts, circumstances and pleadings in the above captioned matter.
2. This affirmation is submitted herewith in support of the application of the
defendants, defendants CORRINE M. TAGUIAM s/h/a TAGUIAM CORRINE MANGALI and
JULIO ROBERTO SAYA s/h/a SAYA JULIO ROBERTO NUNEZ, for an Order pursuant to CPLR
§3103, which seeks a protective order striking the Plaintiffs SONIA CHANCAY REYES and
MAYTE GOMEZ PALACIOS’s Notice to Admit, dated March 11, 2024. A copy of Plaintiff’s
Notice to Admit, dated March 11, 2024, filed as NYSCEF Doc. 6, is incorporated herein,
pursuant to CPLR §2214(c), as EXHIBIT “A”.
3. This matter results from a motor vehicle accident that occurred on March 29,
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FILED: QUEENS COUNTY CLERK 03/20/2024 04:06 PM INDEX NO. 702548/2024
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/20/2024
2023. A copy of plaintiff’s Summons and Complaint, filed as NYSCEF Doc. 1, and the Answer
of the defendants, filed as NYSCEF Doc. 5, are incorporated herein, pursuant to CPLR
§2214(c), as EXHIBIT “B”.
4. The Plaintiff served the Notice to Admit, dated March 11, 2024, requesting
admissions to 18 different items that had already been responded to in defendant’s answer.
Plaintiff’s Notice to Admit was essentially a re-hash of their complaint. Further, plaintiff’s
Notice to Admit was defective on its face, as if defendant chose to passively admit the Notice
to Admit by not providing a response, they would be admitting to contradictory and
diametrically opposed items. Further, said items are more properly addressed by other
discovery devices such as depositions.
5. CPLR §3101(3) indicates “The Court may at any time on its own initiative, or
on motion of any party or of any person from whom discovery is sought, make a protective
order denying, limiting, conditioning, or regulating the use of any disclosure device. Such
order shall be designed to prevent unreasonable annoyance, expense, embarrassment,
disadvantage or other prejudice to any person or the Courts.”
6. The rule in New York with respect to the propriety of a Notice to Admit was
annunciated in the Appellate Division case Tolchin v. Glasser, 47 A.D. 3d 922, 849 N.Y.S.2d
439 (2008). The Court ruled, “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. It is not
intended to cover ultimate conclusions, which can only be made after a full and
complete trial. Moreover, the purpose of a Notice to Admit is not to obtain
information in lieu of other disclosure devices, such as taking of depositions
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NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/20/2024
before trial. Contrary to the plaintiff’s arguments, the Notice to Admit
improperly sought admissions that go to the heart of the matter at issue and
were, therefore, properly stricken. (citations omitted).” (Emphasis added).
7. By way of response dated March 15, 2024, Defendants, defendants CORRINE
M. TAGUIAM s/h/a TAGUIAM CORRINE MANGALI and JULIO ROBERTO SAYA s/h/a SAYA
JULIO ROBERTO NUNEZ, served an objection to Plaintiff’s Notice to Admit. Said response
with objections, filed as NYSCEF Doc. 10, is incorporated herein, pursuant to CPLR §2214(c),
as EXHIBIT “C”. It should be noted that the items that plaintiff requested an admission
regarding are all items more properly suited for depositions. Further, said items requested
for admission were the subject of plaintiff’s complaint, and previously responded to in
defendant’s answer. As the court is aware, A party should not be called upon to admit
or deny what has already been admitted by his pleading Schneider v. East
Coast Cartage, Co., 64 Misc., 2d 83, 314 N.Y.S.2d 312 (1970). It is respectfully
submitted that this Court issue an order striking the plaintiffs’ March 11, 2024, Notice to
Admit.
WHEREFORE, it is respectfully requested, that the within motion be granted in all
respects and for such other and further relief as to this Court may be deemed just and
proper.
Dated: Bethpage, New York
March 15, 2024
CHARLES S. MAILLOUX
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Preview
FILED: QUEENS COUNTY CLERK 03/20/2024 04:06 PM INDEX NO. 702548/2024 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/20/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------X Index No. 702548/24 SONIA CHANCAY REYES and MAYTE GOMEZ PALACIOS, Plaintiffs, AFFIRMATION -against- TAGUIAM CORRINE MANGALI, SAYA JULIO ROBERTO NUNEZ, JOHN DOE (first and last name being fictitious and unknown) and MONSERRATE GOMEZ PALACIOUS, Defendants. ----------------------------------------------------------------X CHARLES S. MAILLOUX, an attorney duly licensed to practice law in the Courts of the State of New York, affirms the following under penalty of perjury: 1. I am an associate with the SCAHILL LAW GROUP, P.C., attorneys of record for the defendants CORRINE M. TAGUIAM s/h/a TAGUIAM CORRINE MANGALI and JULIO ROBERTO SAYA s/h/a SAYA JULIO ROBERTO NUNEZ, and as such, I am fully familiar with the facts, circumstances and pleadings in the above captioned matter. 2. This affirmation is submitted herewith in support of the application of the defendants, defendants CORRINE M. TAGUIAM s/h/a TAGUIAM CORRINE MANGALI and JULIO ROBERTO SAYA s/h/a SAYA JULIO ROBERTO NUNEZ, for an Order pursuant to CPLR §3103, which seeks a protective order striking the Plaintiffs SONIA CHANCAY REYES and MAYTE GOMEZ PALACIOS’s Notice to Admit, dated March 11, 2024. A copy of Plaintiff’s Notice to Admit, dated March 11, 2024, filed as NYSCEF Doc. 6, is incorporated herein, pursuant to CPLR §2214(c), as EXHIBIT “A”. 3. This matter results from a motor vehicle accident that occurred on March 29, 1 of 3 FILED: QUEENS COUNTY CLERK 03/20/2024 04:06 PM INDEX NO. 702548/2024 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/20/2024 2023. A copy of plaintiff’s Summons and Complaint, filed as NYSCEF Doc. 1, and the Answer of the defendants, filed as NYSCEF Doc. 5, are incorporated herein, pursuant to CPLR §2214(c), as EXHIBIT “B”. 4. The Plaintiff served the Notice to Admit, dated March 11, 2024, requesting admissions to 18 different items that had already been responded to in defendant’s answer. Plaintiff’s Notice to Admit was essentially a re-hash of their complaint. Further, plaintiff’s Notice to Admit was defective on its face, as if defendant chose to passively admit the Notice to Admit by not providing a response, they would be admitting to contradictory and diametrically opposed items. Further, said items are more properly addressed by other discovery devices such as depositions. 5. CPLR §3101(3) indicates “The Court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the Courts.” 6. The rule in New York with respect to the propriety of a Notice to Admit was annunciated in the Appellate Division case Tolchin v. Glasser, 47 A.D. 3d 922, 849 N.Y.S.2d 439 (2008). The Court ruled, “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. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. Moreover, the purpose of a Notice to Admit is not to obtain information in lieu of other disclosure devices, such as taking of depositions 2 of 3 FILED: QUEENS COUNTY CLERK 03/20/2024 04:06 PM INDEX NO. 702548/2024 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/20/2024 before trial. Contrary to the plaintiff’s arguments, the Notice to Admit improperly sought admissions that go to the heart of the matter at issue and were, therefore, properly stricken. (citations omitted).” (Emphasis added). 7. By way of response dated March 15, 2024, Defendants, defendants CORRINE M. TAGUIAM s/h/a TAGUIAM CORRINE MANGALI and JULIO ROBERTO SAYA s/h/a SAYA JULIO ROBERTO NUNEZ, served an objection to Plaintiff’s Notice to Admit. Said response with objections, filed as NYSCEF Doc. 10, is incorporated herein, pursuant to CPLR §2214(c), as EXHIBIT “C”. It should be noted that the items that plaintiff requested an admission regarding are all items more properly suited for depositions. Further, said items requested for admission were the subject of plaintiff’s complaint, and previously responded to in defendant’s answer. As the court is aware, A party should not be called upon to admit or deny what has already been admitted by his pleading Schneider v. East Coast Cartage, Co., 64 Misc., 2d 83, 314 N.Y.S.2d 312 (1970). It is respectfully submitted that this Court issue an order striking the plaintiffs’ March 11, 2024, Notice to Admit. WHEREFORE, it is respectfully requested, that the within motion be granted in all respects and for such other and further relief as to this Court may be deemed just and proper. Dated: Bethpage, New York March 15, 2024 CHARLES S. MAILLOUX 3 of 3