Risucci v. Homayoon
| Decision Date | 28 July 1986 |
| Citation | 505 N.Y.S.2d 176,122 A.D.2d 260 |
| Parties | John J. RISUCCI, et al., Respondents, v. Manoochehr HOMAYOON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Schiavetti Begos and Nicholson, New York City (Kenneth Mauro, of counsel), for appellant.
Lawrence M. Honig, New York City, for respondents.
Before WEINSTEIN, J.P., and NIEHOFF, LAWRENCE and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, the defendant appeals (1) as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Roberto, J.), dated December 6, 1984, as denied his motion pursuant to CPLR 3103 for a protective order vacating the plaintiffs' notice to admit, and failed to grant his application for a further opportunity to depose both of the plaintiffs, and (2) from so much of an order of the same court, dated March 28, 1985, as denied his motion to amend the prior order of December 6, 1984, so as to allow him a further opportunity to depose both of the plaintiffs.
Order dated March 28, 1985, reversed insofar as appealed from, without costs or disbursements, and the defendant's motion to amend the prior order so as to require both the plaintiffs to submit to further examinations before trial, granted.
Order dated December 6, 1984, as amended by the order dated March 28, 1985, affirmed insofar as appealed from, without costs or disbursements.
The defendant's attorneys' time to pay a $150 sanction imposed by Special Term in its order dated March 28, 1985, is extended until 20 days after service upon them of a copy of the order to be made hereon. Upon payment of the $150, the defendant may notice depositions of the plaintiffs and a physical examination of the plaintiff John J. Risucci upon written notice of not less than 10 days, or at such time and place as the parties may agree.
The defendant's contentions that the plaintiffs' notice to admit should be vacated because (1) it requests admissions as to matters which could not reasonably be believed to be undisputed, but rather involved issues of expert opinion, and (2) it is being used by the plaintiffs as a substitute for depositions in an attempt to make out a prima facia case on paper, were not raised in the court of first instance. They were, therefore, not preserved for appellate review (see, Mastronardi v. Mitchell, 109 A.D.2d 825, 828, 486 N.Y.S.2d 762; Brent-Grand v. Megavolt Corp., 97 A.D.2d 783, 468 N.Y.S.2d 412). In any event, these arguments are without merit. All of the items in the notice to admit involve clear-cut factual matters about which one would reasonably anticipate no dispute, and the immediate disposition of which would not unfairly prejudice the defendant and would help to expedite the trial (see, CPLR 3123[a]; Villa v. New York City Housing Auth., ...
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Fogal v. Steinfeld
...by permitting plaintiffs to conduct further, limited discovery related to the newly raised defense. [Risucci v. Homayoon, 122 A.D.2d 260, 262, 505 N.Y.S.2d 176 (2d Dept, 1986) ] I note in any event that the defense of preemption constitutes a challenge to the court's subject matter jurisdic......
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...is not governed by the Carmack Amendment, is raised for the first time on appeal and we decline to address it (see, Risucci v. Homayoon, 122 A.D.2d 260, 505 N.Y.S.2d 176). ...
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Burrell v. West
...as she did not object to the admission into evidence of the notice to admit or any of the attached exhibits (see Risucci v. Homayoon, 122 A.D.2d 260, 505 N.Y.S.2d 176 ). In any event, her contention is without merit, as the notice to admit did not seek admissions as to any contested ultimat......
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...with respect to the remaining conditions are unpreserved for appellate review and we decline to address them (see, Risucci v. Homayoon, 122 A.D.2d 260, 505 N.Y.S.2d 176; Mastronardi v. Mitchell, 109 A.D.2d 825, 828, 486 N.Y.S.2d ...