Lolly v Brookdale Univ. Hosp. & Med. Ctr.

2007 NY Slip Op 08416 [45 AD3d 537]

November 7, 2007

Appellate Division, Second Department

As corrected through Wednesday, January 16, 2008

Theresa Lolly, Appellant, v Brookdale University Hospitaland Medical Center, Respondent, et al., Defendants.

—[*1]Norman Leonard Cousins, New York, N.Y., for appellant.

Bower, Sanger & Lawrence, P.C. (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y.[Katherine Herr Solomon] of counsel), for respondent.

In an action to recover damages for medical malpractice, the plaintiff appeals from so much of anorder of the Supreme Court, Kings County (Rosenberg, J.), dated June 19, 2006, as granted thatbranch of the motion of the defendant Brookdale University Hospital and Medical Center whichwas pursuant to CPLR 3103 for a protective order striking the plaintiff's notice to admit.

Ordered that the order is affirmed, with costs.

The supervision of disclosure and the setting of reasonable terms and conditions thereforrests within the sound discretion of the trial court and, absent an improvident exercise of thatdiscretion, its determination will not be disturbed (see Mattocks v White Motor Corp.,258 AD2d 628, 629 [1999]). The Supreme Court providently exercised its discretion in grantingthat branch of the motion of the defendant Brookdale University Hospital and Medical Centerwhich was for a protective order striking the plaintiff's notice to admit. The plaintiff's notice toadmit improperly either sought the defendants' admissions to legal conclusions or went to theheart of the matter (see Glasser v City of New York, 265 AD2d 526 [1999]; Gomez vLong Is. R.R., 201 AD2d 455, 456 [1994]). Moreover, "the purpose of a notice to admit isnot to obtain information in lieu of other disclosure devices, such as the taking of depositionsbefore trial" (DeSilva v Rosenberg, 236 AD2d 508, 509 [1997]). Rivera, J.P., Krausman,Florio, Carni and Balkin, JJ., concur.