| Auto Collection, Inc. v C.P. |
| 2012 NY Slip Op 01644 [93 AD3d 621] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Auto Collection, Inc., et al., Respondents, v C.P.,Appellant, et al., Defendants. |
—[*1] Grunwald & Seman, P.C., Melville, N.Y. (Barnes & Barnes, P.C. [Leo K. Barnes, Jr.], ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of fiduciary duty, the defendant C.P.appeals from an order of the Supreme Court, Kings County (Demarest, J.), entered February 4,2011, which granted the plaintiffs' motion to strike his opposition to a certain notice to admit andto deem the facts stated therein admitted unless he responded, under oath, to the notice to admitwithin 20 days. By decision and order on motion dated March 2, 2011, this Court granted themotion of the defendant C.P. to stay enforcement of the order entered February 4, 2011, pendingthe hearing and determination of the appeal.
Ordered that the order is reversed, on the law, with costs, the plaintiffs' motion to strike theopposition to the notice to admit and to deem the facts stated therein admitted is denied, and thenotice to admit is stricken.
This action, commenced by a used car dealership and its owners against, among others, theirformer employee, the defendant C.P. (hereinafter the appellant), arose out of numerouscomplaints made by the dealership's customers who had allegedly paid for vehicles that theynever received, and ensuing civil actions commenced by those customers against the dealership.The plaintiffs served upon the appellant a notice to admit that he pleaded guilty to a seven-countindictment charging him with grand larceny predicated upon his alleged conduct of stealingcertain checks or funds intended for the purchase of automobiles. The appellant opposed thenotice to admit on the ground, inter alia, that the criminal proceedings on the indictment had beensealed. The plaintiffs thereafter moved to strike the appellant's opposition to the notice to admitand to deem the facts stated therein admitted. The Supreme Court granted the plaintiffs' motionto the strike the opposition to the notice to admit, unless the appellant responded to it, under oath,within 20 days.
The appellant properly opposed the notice to admit on the ground that it sought theadmission of facts that were the subject of a sealed criminal proceeding. This Court has held that,in the face of a statutory grant of confidentiality to records related to youthful offenderadjudications, [*2]a youthful offender could not be compelled bynotice to admit to divulge the contents of the confidential records (see State Farm Fire & Cas.Co. v Bongiorno, 237 AD2d 31, 34-35, 37 [1997]). The Court reasoned that requiring suchdisclosure through the discovery device of a notice to admit would undermine the statutory grantof confidentiality (id. at 35). The same reasoning applies here. The plaintiffs, through thedevice of a notice to admit, cannot be allowed to circumvent an order of a court sealing aproceeding.
Moreover, contrary to the plaintiffs' contention, the appellant did not waive theconfidentiality of the sealed criminal proceeding by asserting cross claims for indemnificationagainst the dealership in two actions commenced by customers against the dealership and theappellant. The cross claims were not asserted in the action at issue on this appeal, and thus, theappellant has not placed his conduct at issue in this action through the assertion of any crossclaims, since he has not asserted any (cf. Green v Montgomery, 95 NY2d 693 [2001]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination.
Accordingly, the Supreme Court should have denied the plaintiffs' motion to strike theappellant's opposition to the notice to admit and to deem the facts stated therein admitted, and thenotice to admit should have been stricken. Skelos, J.P., Balkin, Leventhal and Hall, JJ., concur.