Nacherlilla v. Prospect Park Alliance Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
• Citation: Nacherlilla v. Prospect Park Alliance Inc., 88 A.D.3d 770, 930 N.Y.S.2d 643, 2011 N.Y. Slip Op. 7205 (N.Y. App. Div. 2011)
• Decision Date: 11 October 2011
• Parties: Paula–Anne NACHERLILLA, respondent,v.PROSPECT PARK ALLIANCE, INC., appellant, et al., defendants.

88 A.D.3d 770

930 N.Y.S.2d 643

2011 N.Y. Slip Op. 07205

Paula–Anne NACHERLILLA, respondent,

v.PROSPECT PARK ALLIANCE, INC., appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 11, 2011.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Michael Shender, and Janet L. Zaleon of counsel), for appellant.Bernadette Panzella, P.C., New York, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the defendant Prospect Park Alliance, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated May 19, 2010, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Prospect Park Alliance, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted.

The plaintiff allegedly was injured in a horseback riding accident which occurred near an entrance to Prospect Park in Brooklyn while she was on a guided tour. The horse which she was riding at the time of the accident allegedly was provided to her by the defendant Kensington Stables. She commenced the instant action to recover damages for personal injuries against, among others, Kensington Stables, Inc., Kensington Stables, the City of New York, and Prospect Park Alliance, Inc. (hereinafter the Alliance). The Alliance moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it was not liable for the plaintiff's injuries because it did not exercise control over Kensington Stables, which allegedly operated the guided tour and rented the horse to the plaintiff. The plaintiff opposed the motion, contending, among other things, that the Alliance failed to respond to two notices to admit and, thus, was deemed to have admitted the allegations contained therein, including that it owned, leased, contracted with, operated, controlled, maintained, managed, inspected, serviced, and supplied materials and/or equipment to all or part of Kensington Stables.

The Supreme Court, inter alia, denied the Alliance's motion for summary judgment, finding that the Alliance failed to respond to the notices to admit within the time prescribed by a preliminary conference order and, therefore there were triable issues of fact as to whether the Alliance owned, maintained, supervised, or managed any part of the horse-riding activities performed by Kensington Stables. The Alliance appeals from so much of the order as denied its motion for summary judgment, and we reverse insofar as appealed from.

CPLR 3123 provides, in relevant 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” (CPLR 3123[a] ). If the requested admission is not denied or otherwise explained “within twenty days after service thereof or within such further time as the court may allow,” then the requested admission will be deemed admitted ( id.). “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” ( DeSilva v. Rosenberg, 236 A.D.2d 508, 508, 654 N.Y.S.2d 30; see Rosenfeld v. Vorsanger, 5 A.D.3d 462, 462, 772 N.Y.S.2d 597). “It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” ( DeSilva v. Rosenberg, 236 A.D.2d at 508, 654 N.Y.S.2d 30). “Also, the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial” ( id. at 509, 654 N.Y.S.2d 30). “A notice to admit which goes to the heart of the matters at issue is improper” ( id. at 508, 654 N.Y.S.2d 30; see Tolchin v. Glaser, 47 A.D.3d 922, 849 N.Y.S.2d 439; Glasser v. City of New York, 265 A.D.2d 526, 697 N.Y.S.2d 167).

Here, the plaintiff could not have reasonably believed that the admissions which she sought on the issue of control by the Alliance over Kensington Stables would not be in “substantial dispute at the trial” as they were identical to certain allegations in her complaint and were denied by the Alliance in its answer (CPLR 3123[a]; see Washington v. Alco Auto Sales, 199 A.D.2d 165, 605 N.Y.S.2d 271; cf. Villa v. New York City Hous. Auth., 107 A.D.2d 619, 484 N.Y.S.2d 4). Furthermore, the admissions sought on the issue of control “were at the heart of the controversy” in this case ( Rosario v. City of New York, 261 A.D.2d 380, 381, 689 N.Y.S.2d 519; see Riner v. Texaco, Inc., 222 A.D.2d 571, 571–572, 635 N.Y.S.2d 658) and therefore were improper ( see Morreale v. Serrano, 67 A.D.3d 655, 655–656, 886 N.Y.S.2d 910; Tolchin v. Glaser, 47 A.D.3d at 923, 849 N.Y.S.2d 439; Lolly v. Brookdale Univ. Hosp. & Med. Ctr., 45 A.D.3d 537, 537, 844 N.Y.S.2d 718; Sagiv v. Gamache, 26 A.D.3d 368, 369, 810 N.Y.S.2d 481). Accordingly, it was error for the Supreme Court to rely on the notices to admit for the purpose of finding the existence of triable issues of fact precluding the award of summary judgment.

The alternative grounds...