Hodes v. City of New York

• Decision Date: 28 February 1991
• Citation: 165 A.D.2d 168,566 N.Y.S.2d 611
• Parties: Roberta HODES, Plaintiff-Appellant, v. The CITY OF NEW YORK, Thea Bergere, Richard P. Sullivan, Kevin Butler and Chester Hicks, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 611

566 N.Y.S.2d 611

165 A.D.2d 168

Roberta HODES, Plaintiff-Appellant, v. The CITY OF NEW YORK, Thea Bergere, Richard P. Sullivan Kevin Butler and Chester Hicks, Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Feb. 28, 1991.

Daniel Markewich, of counsel (Mound, Cotton & Wollan, attorneys), for plaintiff-appellant.

Janet L. Zaleon, of counsel (Ellen B. Fishman with her on the brief; Victor A. Kovner, Corp. Counsel, attorney), for defendants-respondents.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, WALLACH and SMITH, JJ.

MILONAS, Justice.

Plaintiff commenced this action for personal injuries, false arrest and malicious prosecution in 1984. Defendants denied liability, and motion practice and disclosure then ensued. On September 8, 1988, plaintiff filed her note of issue and certificate of readiness, which stated that discovery had been completed. A pretrial conference was scheduled for May 8, 1990. Thereafter, on March 22, 1990, plaintiff served a notice to admit pursuant to CPLR 3123(a) in which she sought the admission by defendants of the genuineness of numerous documents and the truthfulness of an extensive series of alleged questions of fact. It should be pointed out that plaintiff's notice and accompanying documents consisted of some fifty papers. Defendants refused to respond, asserting that the notice was simply a discovery device, and plaintiff was precluded from obtaining additional disclosure as a result of the filing of the note of issue. Plaintiff subsequently moved for a protective order under CPLR 3103(a) conditioning or regulating the use of any disclosure device.

In denying the motion, the Supreme Court explained that "[p]laintiff's notice to admit dated and served March 22, 1990 is deemed a nullity. The moving papers disclose that the notice to admit was served after the note of issue was filed. It is, therefore, legally ineffective but may be reserved upon withdrawal of the note of issue." In that connection, CPLR 3123(a) provides, in part, with regard to a notice to admit that:

At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or 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 substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.

The Uniform Rules for the New York State Trial Courts requires that a party who serves and files a note of issue and a certificate of readiness must indicate that discovery proceedings now known to be necessary have been completed, that there are no outstanding requests for discovery and that there has been a reasonable opportunity to complete these proceedings (22 NYCRR 202.21). It is plaintiff's contention that since a notice to admit, which may be served any time after service of the answer or twenty days after service of the summons and not later than twenty days before trial, is not an ordinary disclosure device, it is not included in the sort of disclosure prohibited by 22 NYCRR 202.21. To the extent that the existence of a conflict may be perceived between CPLR 3123(a) and 22 NYCRR 202.21, it has been suggested by David D. Siegel in his Practice Commentaries to section 3123 of the CPLR that:

The rules of court under which disclosure is cut off upon the filing of the statement of readiness are themselves an exercise of a statutorily conferred power....