Opinion
No. 17587/13.
06-25-2015
Patricia NEWTON, Plaintiff, v. The JAMAICA HOSPITAL, Otis Elevator Company, Thyssenkrupp Elevator Corporation and Nouveau Elevator Industries, Inc., Defendants.
Opinion
Upon the papers filed in support of the respective motions and the papers filed in opposition thereto, the within motions are determined as follows.
This action involves an incident in which plaintiff alleges that she suffered personal injuries when the elevator she was in, at the Trump Pavilion, on November 4, 2011, located at 89–40 135th Street, New York, New York, suddenly ascended/descended as she was exiting, causing her to be thrown to the ground.
Those portions of defendant TKE's motion seeking relief for the remaining parties' alleged failure to respond to it's respective notices for discovery and inspection and demand for a verified bill of particulars are denied as moot, the compliance conference in this matter having occurred during the pendency of this motion, on April 15, 2015, and having dealt with the issues raised concerning outstanding discovery.
On or about November 25, 2014 defendant TKE served a Notice to Admit to Jamaica Hospital. The parties stipulated for an extension of time, beyond the twenty day statutory period, for defendant Jamaica Hospital to answer said notice. Prior to the expiration of such time defendant Jamaica Hospital moved for a protective order and to vacate the notice to admit. This court rejects the arguments set forth by TKE, that said Notice to Admit be deemed admitted in it's entirety by Jamaica Hospital in that Jamaica Hospital did not move for a protective order within twenty days of service. As the motion for a protective order was made within the extended time period agreed to by the parties, the court deems said motion timely made and will decide same herein. Accordingly that portion of TKE's motion which seeks to have the Notice to Admit to Jamaica Hospital deemed admitted is denied.
Turning now to Jamaica Hospital's application for a protective order and request to strike TKE's Notice to Admit, the court notes that “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” (Tolchin v. Glaser, 47 AD3d 922 [2d Dept.2008] ). Beyond that, it has been held that “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 [2d Dept.1997] ).
In keeping with the foregoing, and upon review of the allegations propounded in the subject Notice to Admit to Jamaica Hospital, it is
ORDERED that the motion by defendant Jamaica Hospital for a protective order is granted to the extent that all points in the Notice to Admit to Jamaica Hospital dated November 25, 2014 are hereby stricken.
Points 1, 4, 5, 6, 7, 8 and 9 of the notice pertain to specific allegations as to whether defendant Nouveau maintained, inspected, serviced and/or repaired the elevators at the location in question. Such points seek admissions on issues which go to the heart of the matters at issue. As such the Notice to Admit as to these points is improper, and as such, these points are stricken. See Kalabovic v. Fort Place Cooperative, Inc., et. al., 159 A.D.2d 609, 552 N.Y.S.2d 663(2nd Dept.1990) (Notice to Admit seeking admissions that pursuant to a contract the party was required to service, inspect, repair, and maintain the elevator in question, as well as to allegations that it did operate, control, repair, inspect and service the elevator was improper). See also Nacherlilla v. Prospect Park Alliance, Inc., et al, 88 AD3d 770, 930 N.Y.S.2d 643(2nd Dept.2011). Further, as these allegations were already set forth in Plaintiff's Complaint, Jamaica Hospital has already addressed these allegations in it's Answer. As such it was improper for these allegations to be put forth to defendant Jamaica Hospital once again, albeit, this time, by moving defendant. (see Snyder v. East Coast Cartage, Co., 64 Misc.2d 83 [NY City Civ.Ct., Bronx Co., 1970] [“a party should not be called upon to admit or deny what has already been admitted by his pleading”] ), and can otherwise be obtained by the taking of depositions (see DeSilva v. Rosenberg, 236 A.D.2d 508 [2d Dept.1997] ).
Points 16, 17, 18, 19, 20, 21, 22 and 23 of the notice pertain to allegations as to whether defendant Nouveau performed inspections of specifically identified elevators at the location in question within the month prior to when this incident is alleged to have occurred. These matters quite clearly seek admissions from defendant Jamaica Hospital as to actions allegedly performed by another party, to wit, defendant Nouveau. As such, these points are improper, and hereby stricken. See Taylor v. Blair, et al., 116 A.D.2d 204, 500 N.Y.S.2d 133(1st Dept.1986). Further, as the information in these points for which moving defendant seeks an admission or denial could be obtained through other disclosure devices, the notice to admit as to these points is improper on this basis as well. See DeSilva, supra. In fact, in the case at bar, moving defendant has previously served comprehensive discovery demands relative to the information sought in the Notice to Admit. Additionally, as depositions have not yet gone forward in this matter, these issues can be explored further during the depositions of the parties, to be held in accordance with this court's compliance conference order, referenced above.
Similarly, points 2, 3, 10, and 11 of the notice pertain to specifics about the building in question. Such inquiries would be appropriately addressed during a deposition, and not as part of a notice to admit. Accordingly these points are additionally stricken. See DeSilva, supra.
Points 12, 13, 14, and 15 of the notice seek admissions concerning designation of device numbers, purportedly given by the NYC Department of Buildings, to the various elevators in the building in question, as well as admissions concerning the accuracy of documents purportedly prepared by the NYC Department of buildings. These points, improperly put forth herein to Jamaica Hospital, are hereby stricken. See Taylor, supra.
With respect to TKE's application to have the Notice to Admit to Nouveau dated November 25, 2014 deemed admitted in its entirety, said application is hereby denied. By all accounts Nouveau's response to this notice to admit was timely served. By letter dated December 18, 2014, TKE advised that it considered Nouveau's response a nullity, as same contained denials made by Nouveau's attorney, and not by sworn statement of a party. In opposition to this motion, Nouveau states that upon receipt of said letter, it advised TKE that the officer who was to sign the Notice to Admit on behalf of Nouveau, had been out of the state, but that a sworn response would be forthcoming. In fact, on or about February 18, 2015 Nouveau re-served it's response to the Notice to Admit, sworn to by Executive VP for Nouveau. The responses were the same as the ones previously served. In this circumstance, and, finding no prejudice to TKE, this court exercises it's discretionary authority to extend the time within which Nouveau had to respond to the notice to admit, nunc pro tunc, deeming the Response served by Nouveau dated February 18, 2015, timely served. See CPLR § 3123(a) (A party must respond to a notice to admit within 20 days of service of the notice “or within such further time as the court may allow ”)(emphasis added). See also Nicholas Cabrini, Inc. v. Hagenbart, 28 Misc.3d 136(A), 957 N.Y.S.2d 637 (N.Y. Supreme Court, Appellate Term, 2010).
With respect to the remaining applications, it is further
ORDERED that defendant TKE's application to compel plaintiff to appear, with counsel, at the location of incident, to “physically identify the elevator by pointing to it”, is denied, without prejudice to renewal. This request is pre-mature given that the deposition of the plaintiff has not yet even taken place; and it is further
ORDERED that defendant TKE's application for a stay of all depositions in this matter is denied. The parties are to adhere to the terms and directives set forth in the compliance conference order with respect to providing discovery and conducting depositions; and it is further
ORDERED that all other applications or arguments raised by the within motions which were not specifically addressed herein are denied and/or found to be without merit; and it is further
ORDERED that moving defendant is to serve a copy of this decision with Notice of Entry on all parties within twenty (20) days of entry.
The foregoing constitutes the decision and order of this court.