Kornblau v. Sauter

• Decision Date: 12 April 2023
• Docket Number: Index No. 805344/2015,Motion Seq. No. 004
• Citation: Kornblau v. Sauter, 2023 NY Slip Op 31323(U), Index No. 805344/2015, Motion Seq. No. 004 (N.Y. Sup. Ct. Apr 12, 2023)
• Parties: LYNN SARE KORNBLAU, AS EXECUTRIX OF THE ESTATE OF JEFFREY M. KORNBLAU, and LYNN SARE KORNBLAU, INDIVIDUALLY, Plaintiff, v. CRAIG SAUTER, M.D., MEMORIAL SLOAN KETTERING CANCER CENTER, MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES, FATIMA CONTEH, N.P., ROSINA ROSARIO, P.A., JAMES YOUNG, M.D., ANN JAKUBOWSKI, M.D., and JENNA GOLDBERG, M.D., Defendants.
• Court: New York Supreme Court

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2023 NY Slip Op 31323(U)

LYNN SARE KORNBLAU, AS EXECUTRIX OF THE ESTATE OF JEFFREY M. KORNBLAU, and LYNN SARE KORNBLAU, INDIVIDUALLY, Plaintiff, v. CRAIG SAUTER, M.D., MEMORIAL SLOAN KETTERING CANCER CENTER, MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES, FATIMA CONTEH, N.P., ROSINA ROSARIO, P.A., JAMES YOUNG, M.D., ANN JAKUBOWSKI, M.D., and JENNA GOLDBERG, M.D., Defendants.

Index No. 805344/2015, Motion Seq. No. 004

Supreme Court, New York County

April 12, 2023

Unpublished Opinion

MOTION DATE 01/23/2023.

PRESENT: HON. JOHN J. KELLEY, Justice.

DECISION + ORDER ON MOTION

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 180, 181, 182, 183, 184, 185, 186, 187, 188 189, 190, 191, 192, 193, 194, 195, 196, 197 were read on this motion to/for DISCOVERY/PROTECTIVE ORDER .

In this action, inter alia, to recover damages for medical malpractice and wrongful death, the defendants move pursuant to CPLR 3103(a) for a protective order vacating the plaintiff's December 2, 2022 notice to admit.The plaintiff opposes the motion.The motion is granted, and the notice to admit is vacated.

On November 11, 2015, the plaintiff commenced the instant medical malpractice and wrongful death action, asserting 17 causes of action, including causes of action alleging breach of contract, negligent infliction of emotional distress common-law negligence, and lack of informed consent.Between September 12, 2017 and March 21, 2013, the court issued nine case management orders.As of the latter date, the depositions of at least five nonparty witnesses, including two who formerly were employed by the defendant Memorial Hospital for Cancer and Allied Diseases, had yet to be conducted.

On December 2, 2022, the plaintiff served a notice to admit upon the defendants, requesting that they admit to 145 separately enumerated statements.Rather than responding with admissions or denials, the defendants, within six days of their receipt of the notice, made the instant motion for a protective order.

CPLR 3123(a) provides, in pertinent part, that

"a party may serve upon any other party a written request for admission 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 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 purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial.It is not intended to cover ultimate conclusions which can only be made after a full and complete trial"(Lotrean v 3M Co.,2022NY Slip Op32679[U], *2, 2022 NY. Misc. LEXIS 3990, *3[Sup Ct, N.Y. County, Aug 8, 2022];see alsoTonkiwa Ltd. v Truesdell, 155 A.D.3d 1479, 1481[3d Dept2017];Nacherlilla v Prospect Park Alliance, Inc., 88 A.D.3d 770, 771-772[2d Dept2011];Hawthorne Group, LLC v RRE Ventures, 7 A.D.3d 320, 324[1st Dept2004];DeSilva by DeSilva v Rosenberg, 236 A.D.2d 508, 508[2d Dept1997]).Stated differently, a notice to admit is designed to secure a stipulation regarding certain specific matters about which there is general agreement (seeLewis v Hertz Corp.,193 A.D.2d 470, 470[1st Dept1993];Hodes v New York,165 A.D.2d 168, 170-171[1st Dept1991]).

A notice to admit is improper where it seeks admission of obviously disputed matters that go to the heart of the controversy between the parties(seeVillage of Malone v Stone Mtn. Prime, LLC,204 A.D.3d 1148, 1150[3d Dept2022];Lewis v DiMaggio,151 A.D.3d 1296, 1298[3d Dept2017];Priceless Custom Homes, Inc. v O'Neill,104 A.D.3d 664, 665[2d Dept2013]), or requests admission of material or ultimate issues of fact (seeEddyville Corp. v Relyea,35 A.D.3d 1063, 1066[3d Dept2006];see also32nd Ave. LLC v Angelo Holding Corp.,134 A.D.3d 696, 698[2d Dept2015];Taylor v Blair,116 A.D.2d 204, 206[1 st Dept 1986]).Moreover, a notice to admit may not be used to obtain information in lieu of other disclosure devices such as depositions, where those other disclosure devices are superior (seeGenna v Klempner, 195 A.D.3d 444, 444[1st Dept2021];Voigt v Savarino Constr. Corp., 94 A.D.3d 1574, 1575[4th Dept2012];Falkowitz v Kings Hwy. Hosp.,43 A.D.2d 696, 696[2d Dept1973];Doe v Lenox Hill Hosp.,2023NY Slip Op30342[U], *3-4, 2023NYMisc. LEXIS 466, *5[Sup Ct, N.Y. County, Feb. 1,2023][Kelley, J.]).

Here, the plaintiff's notice to admit improperly requested the defendants to admit legal conclusions and ultimate issues going to the core of the dispute.Moreover, most of the facts underlying many of the statements that the plaintiff requested the defendants to admit or deny were more appropriately discovered by means of a deposition.As such, the plaintiff's notice cannot be deemed admitted.Nor can this court compel the defendants to provide responses, since CPLR 3123 is self-regulating insofar as sanctions are concerned (seeCPLR 3123[c];see alsoSpawton v James E. Strates Shows, Inc.,75 Misc.2d 813, 815[Sup Ct, Erie County1973]), and notices to admit are expressly excluded from the ambit of CPLR 3124, which provides a vehicle to compel a party to respond to discovery demands, as that section relates only to depositions, interrogatories, and matters arising out of various CPLR article 31 provisions other than CPLR 3123(seeid.;Glasser v City of NY,265 A.D.2d 526, 526[2d Dept1999][holding that the penalties of CPLR 3126 do not apply to CPLR 3123, since the latter is self-executing]).

CPLR 3103(a) allows the court, on its own motion or on motion of any party, to make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device.A party may "seek a protective order if the requests in the notice to admit are claimed not to be the proper subject of inquiry under CPLR 3123(a)"(Howlan v Rosol, 139 A.D.2d 799, 801[3d Dept1988];seeJet One Group, Inc. v Halcyon Jet Holdings, Inc.,111 A.D.3d 890, 893[2d Dept2013]).CPLR 3103(a) specifically provides that the court may make such order "at any time"(CPLR 3103[a];see alsoNader v Gen. Motors Corp.,53 Misc.2d 515, 517[Sup Ct, N.Y. County1967]affd29 A.D.2d 632[1st Dept1967][finding that the extremely broad language of CPLR 3103 is clear and unequivocal in permitting a court to rule in advance or trial or at any time on demands to any disclosure device, including a notice to admit]).

Although CPLR 3123(a) provides that "[e]ach of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof, . . . the party to whom the request is directed serves upon the party requesting the admission a sworn statement . . . denying specifically the matter of which an admission is requested," here, the

"notice to admit called upon the [defendants] to admit . . . fact[s] . . . .as to which the plaintiff's attorney could not reasonably have believe[d] there [could] be no substantial dispute at the trial . . . .and which improperly went to the heart of the matter at issue.Therefore, [the defendants] should not be bound by the notice to admit, even if [they] failed to properly respond to it"

(Smithv...