Marguess v. City of New York

• Decision Date: 02 July 1968
• Citation: Marguess v. City of New York, 291 N.Y.S.2d 956, 30 A.D.2d 782 (N.Y. App. Div. 1968)
• Parties: Maurice MARGUESS, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent. The CITY OF NEW YORK, Third-Party Plaintiff, v. SURFACE TRANSIT, INC., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 956

291 N.Y.S.2d 956

30 A.D.2d 782

Maurice MARGUESS, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.

The CITY OF NEW YORK, Third-Party Plaintiff, v. SURFACE TRANSIT, INC., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

July 2, 1968.

S. B. Weingrad, New York City, for plaintiff-appellant.

I. Genn, New York City, for defendant-respondent and third-party plaintiff.

W. H. Frappollo, New York City, for third-party defendant-respondent.

Before BOTEIN, P.J., and EAGER, CAPOZZOLI, McGIVERN and MACKEN, JJ.

PER CURIAM.

Judgment dismissing the complaint at the end of the plaintiff's case, affirmed without costs or disbursements. Although we do not mitigate in any way the remissness of the defendant City in its culpably neglectful treatment of the plaintiff's Notice to Admit, we feel the Answer of the City and the limited admission of the defendant Surface put the plaintiff on notice he would be put to his full proof as to all the essential elements of his case. Furthermore, the sweeping, generalized demands of the plaintiff's Notice, relating to questions of ultimate liability, were not attuned to any reasonable belief that they were free from substantial dispute, and thus, admissible matter. See, Seventh Annual Report of Judicial Council, 1941, pages 307--308 referred to in Matter of Kelly, 33 Misc.2d 16, 17, 225 N.Y.S.2d 896, 898 (Surr.Ct., N.Y.Co., 1962). And in view of their palpably objectionable character, it was not improper for the Trial Court, in its discretion, to entertain an objection. CPLR § 3123 subdivision (b) makes clear that every admission is 'subject to all pertinent objections to admissibility which may be interposed at the trial'. Finally, the position of the plaintiff, vis-a-vis his Notice to Admit and the City's censurable treatment of it, is not enhanced by the absence of any actionable negligence on the part of the City to the plaintiff. See, D'Anna v. City of New York, 269 App.Div. 750, 54 N.Y.S.2d 320; Malone v. New York City Transit Authority, 20 A.D.2d 768, 247 N.Y.S.2d 661.

All concur except EAGER and CAPOZZOLI, JJ., who dissent in the following memorandum by EAGER, J.:

EAGER, Justice (dissenting):

I dissent. I would reverse and remand this action for a retrial, with leave to the defendant City to apply to amend or withdraw its admission in accordance with the provision of CPLR 3123(b).

On the basis of the record and as a matter of law, it was improper for the trial court to dismiss the complaint at the end of plaintiff's case. By its failure to respond to the notice to admit served upon it pursuant to CPLR 3123, the defendant City admitted that the street where the plaintiff tripped and fell was 'in a state of disrepair'; that such condition had existed 'for over a period of 16 months previous to June 22, 1963 (the date of the accident) without any effort made to repair or correct said condition'; and that 'any repairs, if any, were made more than 16 months prior to June 22, 1963.'

The party served with a written demand to admit matters of fact, pursuant to CPLR 3123, 'may not ignore it (the demand) unless he wishes to have the facts deemed to be admitted. * * * The trial court * * * does not have the power to excuse a total failure to comply with the demand, particularly since the section specifically reserves the right to object at the trial to the admissibility of the facts admitted.' (Rusnak v. Doby, 267 App.Div. 122, 123, 44 N.Y.S.2d 730, 731.)

The response served by the third party defendant to plaintiff's demand to admit is certainly not available to the defendant City as an excuse for its default, and the City is not thereby relieved from the effect of the admissions resulting from the application of the statute. Inasmuch as the plaintiff's action was brought against the City alone, he was...