| Nacherlilla v Prospect Park Alliance, Inc. |
| 2011 NY Slip Op 07205 [88 AD3d 770] |
| October 11, 2011 |
| Appellate Division, Second Department |
| Paula-Anne Nacherlilla, Respondent, v Prospect ParkAlliance, Inc., Appellant, et al., Defendants. |
—[*1] Bernadette Panzella, P.C., New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Prospect Park Alliance,Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated May 19, 2010, as denied its motion for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Prospect Park Alliance, Inc., for summary judgment dismissing thecomplaint insofar as asserted against it is granted.
The plaintiff allegedly was injured in a horseback riding accident which occurred near anentrance to Prospect Park in Brooklyn while she was on a guided tour. The horse which she wasriding at the time of the accident allegedly was provided to her by the defendant KensingtonStables. She commenced the instant action to recover damages for personal injuries against,among others, Kensington Stables, Inc., Kensington Stables, the City of New York, and ProspectPark Alliance, Inc. (hereinafter the Alliance). The Alliance moved for summary judgmentdismissing the complaint insofar as asserted against it, arguing that it was not liable for theplaintiff's injuries because it did not exercise control over Kensington Stables, which allegedlyoperated the guided tour and rented the horse to the plaintiff. The plaintiff opposed the motion,contending, among other things, that the Alliance failed to respond to two notices to admit and,thus, was deemed to have admitted the allegations contained therein, including that it owned,leased, contracted with, operated, controlled, maintained, managed, inspected, serviced, andsupplied materials and/or equipment to all or part of Kensington Stables.
The Supreme Court, inter alia, denied the Alliance's motion for summary judgment, findingthat the Alliance failed to respond to the notices to admit within the time prescribed by apreliminary conference order and, therefore there were triable issues of fact as to whether theAlliance owned, maintained, supervised, or managed any part of the horse-riding activitiesperformed by Kensington Stables. The Alliance appeals from so much of the order as denied itsmotion for summary judgment, and we reverse insofar as appealed from.[*2]
CPLR 3123 provides, in relevant part, that "a party mayserve upon any other party a written request for admission by the latter . . . of thetruth of any matters of fact set forth in the request, as to which the party requesting the admissionreasonably believes there can be no substantial dispute at the trial and which are within theknowledge of such other party or can be ascertained by him upon reasonable inquiry" (CPLR3123 [a]). If the requested admission is not denied or otherwise explained "within twenty daysafter service thereof or within such further time as the court may allow," then the requestedadmission will be deemed admitted (id.). "The purpose of a notice to admit is only toeliminate from the issues in litigation matters which will not be in dispute at trial" (DeSilva vRosenberg, 236 AD2d 508, 508 [1997]; see Rosenfeld v Vorsanger, 5 AD3d 462, 462 [2004]). "It is notintended to cover ultimate conclusions, which can only be made after a full and complete trial"(DeSilva v Rosenberg, 236 AD2d at 508). "Also, the purpose of a notice to admit is notto obtain information in lieu of other disclosure devices, such as the taking of depositions beforetrial" (id. at 509). "A notice to admit which goes to the heart of the matters at issue isimproper" (id. at 508; seeTolchin v Glaser, 47 AD3d 922 [2008]; Glasser v City of New York, 265 AD2d526 [1999]).
Here, the plaintiff could not have reasonably believed that the admissions which she soughton the issue of control by the Alliance over Kensington Stables would not be in "substantialdispute at the trial" as they were identical to certain allegations in her complaint and were deniedby the Alliance in its answer (CPLR 3123 [a]; see Washington v Alco Auto Sales, 199AD2d 165 [1993]; cf. Villa v New York City Hous. Auth., 107 AD2d 619 [1985]).Furthermore, the admissions sought on the issue of control "were at the heart of the controversy"in this case (Rosario v City of New York, 261 AD2d 380, 381 [1999]; see Riner vTexaco, Inc., 222 AD2d 571, 571-572 [1995]) and therefore were improper (see Morreale v Serrano, 67 AD3d655, 655-656 [2009]; Tolchin v Glaser, 47 AD3d at 923; Lolly v Brookdale Univ. Hosp. & Med.Ctr., 45 AD3d 537 [2007]; Sagiv v Gamache, 26 AD3d 368, 369 [2006]). Accordingly, it waserror for the Supreme Court to rely on the notices to admit for the purpose of finding theexistence of triable issues of fact precluding the award of summary judgment.
The alternative grounds for affirmance presented by the plaintiff (see Parochial Bus Sys.v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]) are without merit. Contrary to hercontention, the Alliance established its prima facie entitlement to judgment as a matter of law bysubmitting sufficient evidence to demonstrate that it did not exercise control over KensingtonStables or its tour guides and, thus was not vicariously liable for their acts or omissions (seeHannold v First Baptist Church, 254 AD2d 746, 746 [1998]; Davis v Shelton, 33AD2d 707 [1969]). In opposition, the plaintiff failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557 [1980]). She failed to raise a triable issue of fact as to whether theAlliance owed her a duty of care as an agent of the City which owned the park. "Landowners. . . have a duty to act in a reasonable manner to prevent harm to those on theirproperty. In particular, they have a duty to control the conduct of third persons on their premiseswhen they have the opportunity to control such persons and are reasonably aware of the need forsuch control" (D'Amico v Christie, 71 NY2d 76, 85 [1987] [citation omitted]; seeKern v Ray, 283 AD2d 402 [2001]). This duty emanates "from the obligation of a landownerto keep its premises free of known dangerous conditions" (D'Amico v Christie, 71 NY2dat 85). A duty of care on the part of a managing agent may arise "where there is a comprehensiveand exclusive management agreement between the agent and the owner [of the property] whichdisplaces the owner's duty to safely maintain the premises" (Roveccio v Ry Mgt. Co., Inc., 29 AD3d 562, 562 [2006]). Here, theplaintiff failed to raise a triable issue of fact as to the existence of an agreement which wouldrequire the Alliance to safely maintain the premises on behalf of the City. Additionally, theplaintiff failed to raise a triable issue of fact as to whether the Alliance owed her a duty of care byvirtue of its relationship with Kensington Stables. The evidence which the plaintiff submitteddemonstrating that the Alliance maintains a website that promotes the use of the bridle paths andrefers park visitors to Kensington Stables for horse rentals and riding lessons was insufficient toconstitute a "holding out to the public" which would estop the Alliance from disclaiming liabilityfor the alleged negligence of Kensington Stables and its tour guide (Aronov v BruinsTransp., 294 AD2d 522, 523 [2002]).
Accordingly, the Supreme Court should have granted the Alliance's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Angiolillo, J.P., Dickerson,Chambers and Lott, JJ., concur.