Preview
FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------··-------------------X
DINA STEIN and ALAN STEIN,
Index No.: 157010/2019
Plaintiffs,
-against-
DAVID GOLDBERG,
Defendant.
------------------------------------ ¬-------------X
MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT,
AND IN SUPPORT OF DEFENDANT'S
CROSS-MOTION FOR PROTECTIVE ORDER
WADE CLARK MULCAHY LLP
Shira T. Straus, Esq.
Attorneys for Defendant
DAVID GOLDBERG
180 Maiden Lane, Suite 901
New York, NY 10038
(212) 267-1900
Our File No.: 150.11736.1
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Preliminary Statement
This memorandum of law is respectfully submitted in opposition to Plaintiff DINA
STEIN and ALAN STEIN (hereinafter "Plaintiff")'s motion for summary judgment which
seeks an Order finding that the defendant was negligent in this action and further seeks
dismissal of defendant's affirmative defense of comparative negligence; and also submitted
in support of defendant's cross-motion seeking a protective order striking Plaintiff's First
Notice to Admit. Plaintiff claims that the defendant was negligent in the operation of his
vehicle in connection with an accident that occurred on January 29, 2019. To date, no
Preliminary Conference has been held for this matter, and no depositions have taken place.
Plaintiff has prematurely filed this motion as discovery has not been conducted and
significant questions of fact remain. As such, the Plaintiff's motion should be denied in its
entirety. Furthermore, Plaintiff's First Notice to Admit is palpably improper, as it sought
admissions concerning the very heart of the controversy in this case. Accordingly, the
defendant's cross-motion for a protective order striking Plaintiff's First Notice to Admit
should be granted.
Factual Background
In the interest of judicial economy, the factual background is set forth in the
accompanying Affirmation of Shira T. Straus, Esq., dated January 24, 2020, and the
Affidavit of David Goldberg, dated January 15, 2020.
Legal Argument
L PLAINTIFF'S MOTION IS PREMATURE PURSUANT TO CPLR § 3212(f)
AND QUESTIONS OF FACT EXIST AS TO THE LIABILITY IN THIS ACCIDENT
CPLR § 3212(f) mandates denial of a motion for summary judgment when the motion
is patently premature. Sanchez v. City of New York, 43 Misc. 3d 1211(A), 990 N.Y.S.2d
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(ISL
439(A) (2014); McGlynn v. Palace Co., 262 A.D.2d 116 Dep't 1999); Bradley v. IBEX
(1st
Construction, LLC, 22 A.D.3d 380, Dep't 2005).
The courts in Sanchez and Bradley noted that a motion for summary judgment is
patently premature when it is made prior to the preliminary conference. Under these
circumstances, both courts have held that the proponent seeking denial of a motion as
premature need not demonstrate what discovery is sought, but merely that outstanding
discovery will lead to the discovery of triable issues of fact. See, Sanchez v. City of New
York, 43 Misc. 3d 1211(A), 990 N.Y.S.2d 439(A) (2014) (citing Gao v. City of New York, 29
(1St
A.D.3d 449 Dep't 2006)); see also, Bradley v. IBEX Construction, LLC, 22 A.D.3d 380,
(Ist
801 N.Y.S.2d 901 Dep't 2005).
(15t
In Wilson v. Yemen Realty Corp., 74 A.D.3d 544, 903 N.Y.S.2d 42 Dep't 2010),
the First Department held that summary judgment was premature in light of the incomplete
status of discovery, including the fact that no party had yet been disposed. See, Wilson at
345 (citing Groves v. Land's End Hous. Co., 80 N.Y.2d 978, 607 N.E.2d 790 (1992); Harvey
v. Nealis, 61 A.D.3d 935, 877 N.Y.S.2d 459 (2009); and McGlynn v. Palace Co., 262 A.D.2d
(1st
116, 691 N.Y.S.2d 514 Dep't 1999)).
In the matter at bar, Plaintiff alleges that the defendant caused a motor vehicle
accident on January 29, 2019. See, Affirmation of Jonathan R. Ratchik, Esq., dated
December 4, 2019 ("Ratchik Aff.") at Ex. A. Prior to filing the underlying motion only
minimal discovery was exchanged, no Preliminary Conference was held, and no depositions
were conducted. Courts have repeatedly held that a defendant is entitled to depose a plaintiff
in a personal injury action prior to a grant of summary judgment against them. Grunfeld v.
City of New Rochelle, 72 A.D.3d 1025, 900 N.Y.S.2d 144 (2d Dept. 2010); Elliot v. County
3 of 9
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of Nassau, 53 A.D.3d 561, 862 N.Y.S.2d 90 (2d Dept. 2008); Jones v. American Commerce
Ins. Co., 92 A.D.3d 844, 939 N.Y.S.2d 115 (2d Dept. 2012).
Because there has been only minimal discovery exchanged and no depositions have
been conducted, there remain questions of fact as to whether Plaintiff's conduct at and
around the time of the accident contributed to the happening of the accident. Defendant has
submitted an affidavit in opposition to Plaintiff's motion wherein he raises several areas of
Plaintiff's potential comparative negligence, such as wearing a dark coat on a dark and rainy
night, and potentially not looking forwards while crossing the street due to not carrying an
umbrella. Goldberg Aff. at ¶¶ 3, 6, 11. Defendant is entitled to a deposition of the Plaintiff
to obtain more information from Plaintiff, and to testify at a deposition himself.
Each case cited by Plaintiff for the position that she is entitled to summary judgment
with regard to liability at this time is distinguishable from the matter at bar due to the
prematurity of Plaintiff's motion and the fact that depositions have not taken place.
(1st
In Cartagena v. Girandola, 104 A.D.3d 599 Dep't 2013), the First Department
held that the plaintiff was entitled to summary judgment because she had testified "without
contradiction"
that the defendant's vehicle struck her while making a left turn, and that the
defendant had failed to raise an issue of fact as to her comparative negligence. Id at 599-
(1st
600. In Coutu v. Domingo, 123 A.D.3d 410 Dep't 2014), the First Department held that
the plaintiff was entitled to summary judgment because he established that the defendant's
car struck him while making a right turn, and the defendant had denied any recollection of
the accident and was therefore unable to present any evidence with regard to liability or
comparative negligence. Id at 410. Here, no depositions have taken place and defendant has
not had the opportunity to raise any issues of fact as to liability or comparative negligence.
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Although the Court of Appeals recently held in Rodriguez v. City of New York, 31
N.Y.3d 312 (N.Y. 2018) that a plaintiff is not required to demonstrate freedom from
comparative negligence to be entitled to summary judgment on liability, that matter is
distinguishable as well because the plaintiff's original summary judgment motion was made
at the completion of discovery. Rodriguez v. City of New York, 31 N.Y.3d 312, 316 (N.Y.
2018) ("Plaintiff commenced this negligence action against the City of New York. After
discovery, he moved for partial summary judgment on the issue of defendant's liability [...]).
Again, in this case, discovery has barely begun and no depositions have taken place.
The Plaintiff has failed to provide prima facie evidence to show that she did not act or
fail to act in a negligent manner thus contributing to this accident. In the instant action, due
to the prematurity of the motion and the lack of admissible evidence as to the Plaintiff's
conduct at and around the time of the accident, there remain questions of fact as to whether
Plaintiff bears any liability in this accident.
The evidence must be viewed in the light most favorable to the party opposing the
motion, giving that party the benefit of every reasonable inference, in order to determine
whether there is any triable issue of fact outstanding. See Suffolk County Dept. of Soc Servs.
v. James M, 83 N.Y.2d 178 (1994). Viewed most favorably towards the defendant, there are
many questions of fact present in this matter at this time. The defendant should be entitled to
further - depositions - to further explore the questions of fact mentioned
discovery including
above, prior to any determination of liability by this Court.
Furthermore, your Affirmant respectfully submits that no prejudice would come to
the Plaintiff/movant by denying the instant motion for summary judgment on the grounds
that it ispremature. Plaintiff would not be precluded from petitioning this Court for leave to
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re-submit her motion for summary judgment with regard to liability after depositions of all
parties have been completed and all post-deposition discovery has been completed.
Plaintiff's motion is premature and should be denied pursuant to CPLR § 3212(f).
II. PLAINTIFF'S FIRST NOTICE TO ADMIT IS A PALPABLY IMPROPER
ATTEMPT TO CIRCUMVENT DISCOVERY AND SECURE DISPUTED
INFORMATION THAT GOES TO THE HEART OF THIS CONTROVERSY,
AND MUST BE STRICKEN
Plaintiff's First Notice to Admit is palpably improper. The Notice to Admit requests
admission of disputed facts that go to the heart of the controversy. The Court must grant
defendant a protective order striking Plaintiff's First Notice to Admit.
CPLR § 3123(a) provides that a party may serve upon any other party a written
request for admission of the genuineness of papers or documents, or the correctness or
fairness of photographs, "or the truth of any matters set forth in the request, as to which the
party requesting the admission reasonably believes there can be no substantial dispute at the
trial[.]"
Any request for admission is deemed admitted unless within twenty days the party to
whom the request is directed provides either a sworn statement denying specific matters or
setting forth why they cannot truthfully be admitted or denied.
The purpose of a Notice to Admit is specifically to eliminate as issues matters which
will not be in dispute at trial. It is not intended to address ultimate conclusions, which can
only be made after a full and complete trial, or to be used as a substitute for existing
(1"
discovery devices. Taylor v. Blair, I16 A.D.2d 204, 206 Dep't notice to
1986) ("[A]
admit may not be utilized to request admission of material issues or ultimate or conclusory
facts [], which can only be resolved after a full trial. As stated, itmay not be employed as a
substitute for other disclosure devices, such as examinations before trial [...]"); see also Jet
One Group, Inc. v. Halcyon Jet Holdings, Inc., 111 A.D.3d 890 (2d Dep't 2013).
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A plaintiff cannot use a Notice to Admit to make the defendant admit negligence or
other fault. See Glasser v. New York, 265 A.D.2d 526 (2d Dep't 1999) (notice to
City of
issue"
admit admission going to "heart of matter at improper").
seeking
In Altman v. Kelly, 128 A.D.3d 741 (2d Dep't 2015), the Second Department struck a
Notice to Admit where the plaintiff had requested admission with regard to the "core legal
issues" -
and factual to the defendant that the defendant's vehicle had made
pertaining
contact with the plaintiff on the date of the accident. Altman, at 743 (referencing DeSilva v.
236 A.D.2d 508 (2d Dep't 1997). The Second Department continued and held
Rosenberg,
that "the facts underlying the determination of whether [the defendant] is liable for [the
defendant's employee's] alleged negligence may be obtained through discovery, including
defendants."
depositions of the Altman at 743.
In the context of a motor vehicle accident, a Notice to Admit may be used to make the
defendant admit or deny that he was the driver or owner of a car but may not be used to
admit that a defendant was negligent. This is further demonstrated by the Second
Department's holding in Ramcharran v. New York Airport Services, LLC, 108 A.D.3d 610
(2d Dep't 2013). In Ramcharran, the plaintiff alleged that he was struck by a motor vehicle
operated by the defendant. The plaintiff served a notice to admit seeking one admission: that
on the date of the accident, the motor vehicle owned and operated by the defendant came into
contact with the plaintiff. Id. The Second Department held that "the plaintiff's notice to
admit improperly sought the defendant's admission concerning a matter that went to the heart
controversy"
of the and struck the notice to admit. Id. at 61 l.
Here, Plaintiff's First Notice to Admit seeks exactly the type of admissions that the
Ramcharran court held were improper. For example, Item #4 seeks to have defendant admit
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966
the following: "That while the defendant's Vehicle was making a leftturn onto West
Stein." "B" "C"
Street, it came in contact with the plaintiff, Dina See Exhibit and Exhibit
annexed hereto.
Incredibly, Plaintiff s letter responding to defendant's objections explicitly
acknowledges that Plaintiff's First Notice to Admit seeks admissions that go to the heart of
the controversy: "The very disputes [sic] of this lawsuit is whether the defendant was
negligent in the operation of his motor vehicle and whether such negligence was a substantial
factor in causing plaintiff's injuries. Whether the defendant was making a left turn at the
time of the incident is a plain factual assertion which can be readily admitted or denied by the
defendant. Likewise, whether the defendant's vehicle came into contact with the plaintiff
defendant."
while making such a turn can be readily admitted or denied by the See Exhibit
"D"
annexed hereto.
Plaintiff has explicitly acknowledged that the Notice to Admit constitutes an attempt
to circumvent the appropriate disclosure device to obtain admissions that constitute the very
heart of the dispute. Accordingly, Plaintiff s First Notice to Admit must be stricken, except
as to those items that defendant responded to without objection. The information requested
should be properly obtained through a deposition of defendant, not a Notice to Admit.
It is well established that a protective order pursuant to CPLR § 3103 is available to
test the validity of a notice to admit made under CPLR § 3123. Epstein v. Consolidated
Energy Co., 31 A.D.2d 746 (2d Dep't 1967). For the above reasons, it is respectfully
requested that the Plaintiff's First Notice to Admit be stricken, specifically items #3 and #4.
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Conclusion
Based upon the above, it is respectfully requested that this Honorable Court deny
Plaintiff's motion which seeks summary judgment on the issue of liability and the dismissal
of defendant's affirmative defense for comparative negligence of the plaintiff; grant the
defendant's cross-motion seeking a protective order striking the Plaintiff's First Notice to
Admit; and for such other and further relief as this Court may deem just, proper, and
equitable.
Dated: New York, New York
January 24, 2020
WADE L RK MUL A LLP
Shir . Straus, Es .
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Preview
FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------··-------------------X DINA STEIN and ALAN STEIN, Index No.: 157010/2019 Plaintiffs, -against- DAVID GOLDBERG, Defendant. ------------------------------------ ¬-------------X MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, AND IN SUPPORT OF DEFENDANT'S CROSS-MOTION FOR PROTECTIVE ORDER WADE CLARK MULCAHY LLP Shira T. Straus, Esq. Attorneys for Defendant DAVID GOLDBERG 180 Maiden Lane, Suite 901 New York, NY 10038 (212) 267-1900 Our File No.: 150.11736.1 1 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 Preliminary Statement This memorandum of law is respectfully submitted in opposition to Plaintiff DINA STEIN and ALAN STEIN (hereinafter "Plaintiff")'s motion for summary judgment which seeks an Order finding that the defendant was negligent in this action and further seeks dismissal of defendant's affirmative defense of comparative negligence; and also submitted in support of defendant's cross-motion seeking a protective order striking Plaintiff's First Notice to Admit. Plaintiff claims that the defendant was negligent in the operation of his vehicle in connection with an accident that occurred on January 29, 2019. To date, no Preliminary Conference has been held for this matter, and no depositions have taken place. Plaintiff has prematurely filed this motion as discovery has not been conducted and significant questions of fact remain. As such, the Plaintiff's motion should be denied in its entirety. Furthermore, Plaintiff's First Notice to Admit is palpably improper, as it sought admissions concerning the very heart of the controversy in this case. Accordingly, the defendant's cross-motion for a protective order striking Plaintiff's First Notice to Admit should be granted. Factual Background In the interest of judicial economy, the factual background is set forth in the accompanying Affirmation of Shira T. Straus, Esq., dated January 24, 2020, and the Affidavit of David Goldberg, dated January 15, 2020. Legal Argument L PLAINTIFF'S MOTION IS PREMATURE PURSUANT TO CPLR § 3212(f) AND QUESTIONS OF FACT EXIST AS TO THE LIABILITY IN THIS ACCIDENT CPLR § 3212(f) mandates denial of a motion for summary judgment when the motion is patently premature. Sanchez v. City of New York, 43 Misc. 3d 1211(A), 990 N.Y.S.2d 2 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 (ISL 439(A) (2014); McGlynn v. Palace Co., 262 A.D.2d 116 Dep't 1999); Bradley v. IBEX (1st Construction, LLC, 22 A.D.3d 380, Dep't 2005). The courts in Sanchez and Bradley noted that a motion for summary judgment is patently premature when it is made prior to the preliminary conference. Under these circumstances, both courts have held that the proponent seeking denial of a motion as premature need not demonstrate what discovery is sought, but merely that outstanding discovery will lead to the discovery of triable issues of fact. See, Sanchez v. City of New York, 43 Misc. 3d 1211(A), 990 N.Y.S.2d 439(A) (2014) (citing Gao v. City of New York, 29 (1St A.D.3d 449 Dep't 2006)); see also, Bradley v. IBEX Construction, LLC, 22 A.D.3d 380, (Ist 801 N.Y.S.2d 901 Dep't 2005). (15t In Wilson v. Yemen Realty Corp., 74 A.D.3d 544, 903 N.Y.S.2d 42 Dep't 2010), the First Department held that summary judgment was premature in light of the incomplete status of discovery, including the fact that no party had yet been disposed. See, Wilson at 345 (citing Groves v. Land's End Hous. Co., 80 N.Y.2d 978, 607 N.E.2d 790 (1992); Harvey v. Nealis, 61 A.D.3d 935, 877 N.Y.S.2d 459 (2009); and McGlynn v. Palace Co., 262 A.D.2d (1st 116, 691 N.Y.S.2d 514 Dep't 1999)). In the matter at bar, Plaintiff alleges that the defendant caused a motor vehicle accident on January 29, 2019. See, Affirmation of Jonathan R. Ratchik, Esq., dated December 4, 2019 ("Ratchik Aff.") at Ex. A. Prior to filing the underlying motion only minimal discovery was exchanged, no Preliminary Conference was held, and no depositions were conducted. Courts have repeatedly held that a defendant is entitled to depose a plaintiff in a personal injury action prior to a grant of summary judgment against them. Grunfeld v. City of New Rochelle, 72 A.D.3d 1025, 900 N.Y.S.2d 144 (2d Dept. 2010); Elliot v. County 3 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 of Nassau, 53 A.D.3d 561, 862 N.Y.S.2d 90 (2d Dept. 2008); Jones v. American Commerce Ins. Co., 92 A.D.3d 844, 939 N.Y.S.2d 115 (2d Dept. 2012). Because there has been only minimal discovery exchanged and no depositions have been conducted, there remain questions of fact as to whether Plaintiff's conduct at and around the time of the accident contributed to the happening of the accident. Defendant has submitted an affidavit in opposition to Plaintiff's motion wherein he raises several areas of Plaintiff's potential comparative negligence, such as wearing a dark coat on a dark and rainy night, and potentially not looking forwards while crossing the street due to not carrying an umbrella. Goldberg Aff. at ¶¶ 3, 6, 11. Defendant is entitled to a deposition of the Plaintiff to obtain more information from Plaintiff, and to testify at a deposition himself. Each case cited by Plaintiff for the position that she is entitled to summary judgment with regard to liability at this time is distinguishable from the matter at bar due to the prematurity of Plaintiff's motion and the fact that depositions have not taken place. (1st In Cartagena v. Girandola, 104 A.D.3d 599 Dep't 2013), the First Department held that the plaintiff was entitled to summary judgment because she had testified "without contradiction" that the defendant's vehicle struck her while making a left turn, and that the defendant had failed to raise an issue of fact as to her comparative negligence. Id at 599- (1st 600. In Coutu v. Domingo, 123 A.D.3d 410 Dep't 2014), the First Department held that the plaintiff was entitled to summary judgment because he established that the defendant's car struck him while making a right turn, and the defendant had denied any recollection of the accident and was therefore unable to present any evidence with regard to liability or comparative negligence. Id at 410. Here, no depositions have taken place and defendant has not had the opportunity to raise any issues of fact as to liability or comparative negligence. 4 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 Although the Court of Appeals recently held in Rodriguez v. City of New York, 31 N.Y.3d 312 (N.Y. 2018) that a plaintiff is not required to demonstrate freedom from comparative negligence to be entitled to summary judgment on liability, that matter is distinguishable as well because the plaintiff's original summary judgment motion was made at the completion of discovery. Rodriguez v. City of New York, 31 N.Y.3d 312, 316 (N.Y. 2018) ("Plaintiff commenced this negligence action against the City of New York. After discovery, he moved for partial summary judgment on the issue of defendant's liability [...]). Again, in this case, discovery has barely begun and no depositions have taken place. The Plaintiff has failed to provide prima facie evidence to show that she did not act or fail to act in a negligent manner thus contributing to this accident. In the instant action, due to the prematurity of the motion and the lack of admissible evidence as to the Plaintiff's conduct at and around the time of the accident, there remain questions of fact as to whether Plaintiff bears any liability in this accident. The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding. See Suffolk County Dept. of Soc Servs. v. James M, 83 N.Y.2d 178 (1994). Viewed most favorably towards the defendant, there are many questions of fact present in this matter at this time. The defendant should be entitled to further - depositions - to further explore the questions of fact mentioned discovery including above, prior to any determination of liability by this Court. Furthermore, your Affirmant respectfully submits that no prejudice would come to the Plaintiff/movant by denying the instant motion for summary judgment on the grounds that it ispremature. Plaintiff would not be precluded from petitioning this Court for leave to 5 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 re-submit her motion for summary judgment with regard to liability after depositions of all parties have been completed and all post-deposition discovery has been completed. Plaintiff's motion is premature and should be denied pursuant to CPLR § 3212(f). II. PLAINTIFF'S FIRST NOTICE TO ADMIT IS A PALPABLY IMPROPER ATTEMPT TO CIRCUMVENT DISCOVERY AND SECURE DISPUTED INFORMATION THAT GOES TO THE HEART OF THIS CONTROVERSY, AND MUST BE STRICKEN Plaintiff's First Notice to Admit is palpably improper. The Notice to Admit requests admission of disputed facts that go to the heart of the controversy. The Court must grant defendant a protective order striking Plaintiff's First Notice to Admit. CPLR § 3123(a) provides that a party may serve upon any other party a written request for admission of the genuineness of papers or documents, or the correctness or fairness of photographs, "or the truth of any matters set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial[.]" Any request for admission is deemed admitted unless within twenty days the party to whom the request is directed provides either a sworn statement denying specific matters or setting forth why they cannot truthfully be admitted or denied. The purpose of a Notice to Admit is specifically to eliminate as issues matters which will not be in dispute at trial. It is not intended to address ultimate conclusions, which can only be made after a full and complete trial, or to be used as a substitute for existing (1" discovery devices. Taylor v. Blair, I16 A.D.2d 204, 206 Dep't notice to 1986) ("[A] admit may not be utilized to request admission of material issues or ultimate or conclusory facts [], which can only be resolved after a full trial. As stated, itmay not be employed as a substitute for other disclosure devices, such as examinations before trial [...]"); see also Jet One Group, Inc. v. Halcyon Jet Holdings, Inc., 111 A.D.3d 890 (2d Dep't 2013). 6 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 A plaintiff cannot use a Notice to Admit to make the defendant admit negligence or other fault. See Glasser v. New York, 265 A.D.2d 526 (2d Dep't 1999) (notice to City of issue" admit admission going to "heart of matter at improper"). seeking In Altman v. Kelly, 128 A.D.3d 741 (2d Dep't 2015), the Second Department struck a Notice to Admit where the plaintiff had requested admission with regard to the "core legal issues" - and factual to the defendant that the defendant's vehicle had made pertaining contact with the plaintiff on the date of the accident. Altman, at 743 (referencing DeSilva v. 236 A.D.2d 508 (2d Dep't 1997). The Second Department continued and held Rosenberg, that "the facts underlying the determination of whether [the defendant] is liable for [the defendant's employee's] alleged negligence may be obtained through discovery, including defendants." depositions of the Altman at 743. In the context of a motor vehicle accident, a Notice to Admit may be used to make the defendant admit or deny that he was the driver or owner of a car but may not be used to admit that a defendant was negligent. This is further demonstrated by the Second Department's holding in Ramcharran v. New York Airport Services, LLC, 108 A.D.3d 610 (2d Dep't 2013). In Ramcharran, the plaintiff alleged that he was struck by a motor vehicle operated by the defendant. The plaintiff served a notice to admit seeking one admission: that on the date of the accident, the motor vehicle owned and operated by the defendant came into contact with the plaintiff. Id. The Second Department held that "the plaintiff's notice to admit improperly sought the defendant's admission concerning a matter that went to the heart controversy" of the and struck the notice to admit. Id. at 61 l. Here, Plaintiff's First Notice to Admit seeks exactly the type of admissions that the Ramcharran court held were improper. For example, Item #4 seeks to have defendant admit 7 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 966 the following: "That while the defendant's Vehicle was making a leftturn onto West Stein." "B" "C" Street, it came in contact with the plaintiff, Dina See Exhibit and Exhibit annexed hereto. Incredibly, Plaintiff s letter responding to defendant's objections explicitly acknowledges that Plaintiff's First Notice to Admit seeks admissions that go to the heart of the controversy: "The very disputes [sic] of this lawsuit is whether the defendant was negligent in the operation of his motor vehicle and whether such negligence was a substantial factor in causing plaintiff's injuries. Whether the defendant was making a left turn at the time of the incident is a plain factual assertion which can be readily admitted or denied by the defendant. Likewise, whether the defendant's vehicle came into contact with the plaintiff defendant." while making such a turn can be readily admitted or denied by the See Exhibit "D" annexed hereto. Plaintiff has explicitly acknowledged that the Notice to Admit constitutes an attempt to circumvent the appropriate disclosure device to obtain admissions that constitute the very heart of the dispute. Accordingly, Plaintiff s First Notice to Admit must be stricken, except as to those items that defendant responded to without objection. The information requested should be properly obtained through a deposition of defendant, not a Notice to Admit. It is well established that a protective order pursuant to CPLR § 3103 is available to test the validity of a notice to admit made under CPLR § 3123. Epstein v. Consolidated Energy Co., 31 A.D.2d 746 (2d Dep't 1967). For the above reasons, it is respectfully requested that the Plaintiff's First Notice to Admit be stricken, specifically items #3 and #4. 8 of 9 FILED: NEW YORK COUNTY CLERK 01/24/2020 12:22 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/24/2020 Conclusion Based upon the above, it is respectfully requested that this Honorable Court deny Plaintiff's motion which seeks summary judgment on the issue of liability and the dismissal of defendant's affirmative defense for comparative negligence of the plaintiff; grant the defendant's cross-motion seeking a protective order striking the Plaintiff's First Notice to Admit; and for such other and further relief as this Court may deem just, proper, and equitable. Dated: New York, New York January 24, 2020 WADE L RK MUL A LLP Shir . Straus, Es . 9 of 9