| Voigt v Savarino Constr. Corp. |
| 2012 NY Slip Op 03352 [94 AD3d 1574] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| Timothy Voigt, Doing Business as V-Con Company,Appellant, v Savarino Construction Corporation,Respondent. |
—[*1] Law Office of Ralph C. Lorigo, West Seneca (Ralph C. Lorigo of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), enteredMay 18, 2011 in a breach of contract action. The order denied without prejudice the motion ofplaintiff for summary judgment and granted the motion of defendant for leave to amend itsresponse to plaintiff's notice to admit.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order that denied his motion for, inter alia, summaryjudgment on the amended complaint and granted the motion of defendant for leave to amend itsresponse to plaintiff's notice to admit. Contrary to plaintiff's contention, Supreme Court did notabuse its discretion in granting defendant leave to amend its responses to the notice to admit.Pursuant to CPLR 3123 (a), "a party may serve upon any other party a written request foradmission by the latter of the . . . truth of any matters of fact set forth in the request,as to which the party requesting the admission reasonably believes there can be no substantialdispute at the trial . . . ." The statute further provides that "the court, at any time,may allow a party to amend or withdraw any admission on such terms as may be just" (CPLR3123 [b]). Here, "[i]n view of the underlying purpose of the notice to admit—'to eliminatefrom dispute those matters about which there can be no controversy'—we discern no abuseof discretion in [the court's determination]" (Webb v Tire & Brake Distrib., Inc., 13 AD3d 835, 838 [2004][citations omitted]). "A notice to admit which goes to the heart of the matters at issue is improper. . . Also, the purpose of a notice to admit is not to obtain information in lieu ofother disclosure devices, such as the taking of depositions before trial" (DeSilva vRosenberg, 236 AD2d 508, 508-509 [1997]; see Sagiv v Gamache, 26 AD3d 368, 369 [2006]; Hawthorne Group v RRE Ventures, 7AD3d 320, 324 [2004]). Here, we agree with the court that plaintiff sought admissions tomatters that were at the heart of the controversy, and that plaintiff was using the notice to admitin place of other discovery devices. Further, "plaintiff could not have reasonably believed that theadmissions which [he] sought . . . would not be in 'substantial dispute at the trial' asthey were identical to certain allegations in [the] complaint and were denied by [defendant] in itsanswer" (Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d [*2]770, 772 [2011]; see also Cazenovia Coll. v Patterson, 45AD2d 501, 504 [1974]).
We reject the further contention of plaintiff that the court erred in denying his motion forsummary judgment without prejudice to renew upon the completion of discovery. "Where, ashere, 'the facts essential to opposing [plaintiff's] motion may exist but cannot be stated withoutconducting discovery of employees of [plaintiff] and others, the court [properly denied] themotion pursuant to CPLR 3212 (f)' " (Brown v Krueger, 13 AD3d 1182, 1182-1183 [2004]).
We have considered plaintiff's remaining contention and conclude that it is without merit.Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.