Opinion
2021-03773
06-11-2021
JULIE E. PASEK, INDIVIDUALLY AND AS POWER OF ATTORNEY FOR JAMES G. PASEK, PLAINTIFF-APPELLANT, v. CATHOLIC HEALTH SYSTEM, INC., ET AL., DEFENDANTS, COLDER PRODUCTS COMPANY AND DOVER CORPORATION, DEFENDANTS-RESPONDENTS.
BROWN CHIARI LLP, BUFFALO (ANGELO S. GAMBINO OF COUNSEL), FOR PLAINTIFF-APPELLANT. TUCKER ELLIS LLP, CLEVELAND, OHIO (LAURA KINGSLEY HONG, OF THE OHIO BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND HURWITZ & FINE, P.C., BUFFALO, FOR DEFENDANTS-RESPONDENTS.
BROWN CHIARI LLP, BUFFALO (ANGELO S. GAMBINO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
TUCKER ELLIS LLP, CLEVELAND, OHIO (LAURA KINGSLEY HONG, OF THE OHIO BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND HURWITZ & FINE, P.C., BUFFALO, FOR DEFENDANTS-RESPONDENTS.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered June 27, 2019. The order granted the motion of defendants Colder Products Company and Dover Corporation for a protective order.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order granting the motion of defendants Colder Products Company (Colder) and Dover Corporation (Dover) for a protective order striking two notices to admit. Initially, we note that Dover was subsequently awarded summary judgment dismissing the complaint and all cross claims against it, and plaintiff did not appeal from the order awarding that relief. Thus, the discovery issue on appeal is moot with respect to Dover (see Clark C.B. v Fuller, 59 A.D.3d 1030, 1031 [4th Dept 2009]).
We reject plaintiff's contention that Supreme Court abused its discretion in granting the motion with respect to Colder. Although we agree with plaintiff that the notices to admit were served more than 20 days before trial and were therefore timely (see CPLR 3123 [a]), both notices requested improper admissions from Colder, and the court was not required to "prune" the notices by striking some of the requests and leaving others intact (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 A.D.2d 453, 454 [1st Dept 1995]; see Berg v Flower Fifth Ave. Hosp., 102 A.D.2d 760, 761 [1st Dept 1984]; see generally Singh v G & A Mounting & Die Cutting, 292 A.D.2d 516, 516 [2d Dept 2002]). "[I]n view of the underlying purpose of the notice to admit," i.e., "to eliminate from dispute those matters about which there can be no controversy," we discern "no abuse of discretion in [the court's determination]" (Voigt v Savarino Constr. Corp., 94 A.D.3d 1574, 1575 [4th Dept 2012] [internal quotation marks omitted]).