470 4TH AVENUE FEE OWNER LLC v. ADAM AMERICA LLC 470 LLC LLC (2021)

The following e-filed documents, listed by NYSCEF document number (Motion 006) 205, 206, 207, 208, 209, 210, 211, 212, 213, 223, 224, 225, 226, 227, 228, 237, 238 were read on this motion to/for ORDER OF PROTECTION.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 216, 217, 218, 219, 220, 221, 222 were read on this motion to/for DISCOVERY.

In this action to recover for construction defects, third-party defendant All About AC Corp. (hereinafter, AC) (motion seq no. 006) and third-party defendant Amra Electrical Corporation (Amra) (motion seq no. 007), move, pursuant to CPLR 3103, for protective orders relieving them from providing a response to the November 5, 2020 Notice to Admit served by counsel for defendants Adam America LLC d/b/a Adam America Real Estate and 470 4th Avenue Investors LLC and defendant/third-party plaintiff Danya Cebus Construction LLC (collectively, Danya).

DISCUSSION

A notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable (CPLR 3123; Hodes v City of New York, 165 AD2d 168, 170 [1st Dept 1991]). Its use “is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial” (DeSilva v Rosenberg, 236 AD2d 508, 509 [2d Dept 1997]) or to obtain “admissions to facts that [go] to the heart of the matter” (Morreale v Serrano, 67 AD3d 655, 655 [2d Dept 2009], quoting Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d 537, 537 [2d Dept 2007]).

Contrary to Danya's assertions, the bulk of the notice to admit addressed to AC requests admissions that go to the heart of the parties' claims and defenses (see Washington v Alco Auto Sales, 199 AD2d 165, 165 [1st Dept 1993] [a notice to admit is “not intended as a means of compelling an opposing party to admit to the most fundamental and material of the contested issues of fact”]). However, the requests to admit that are clear and seek admissions of the existence of a contractual relationship between AC and Danya and the authenticity of a contract between AC and Danya are proper. Likewise, the items in the notice to admit addressed to Amra are only proper where they seek admission of a contractual relationship and the authenticity of a contract (see Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 453 [1st Dept 1995] [a notice to admit is strictly limited to requests for admissions of fact to which “there can be no substantial dispute at trial”]).

Accordingly, AC's motion for a protective order is granted only as to items 5 through 38 in the November 5, 2020 notice to admit. AC is directed to provide a response for items 1 through 4 of Danya's November 5, 2020 notice to admit. Further, Amra's motion for a protective order is granted only as to items 4 and 5 in the November 5, 2020 notice to admit. Amra is directed to provide a response for items 1 through 3 of Danya's November 5, 2020 notice to admit.

CONCLUSION

Based upon the foregoing, it is

ORDERED that third-party defendant All About AC Corp.'s motion for a protectiveorder (motion seq no. 006) is granted as to items 5 through 38 in the November 5, 2020 notice to admit, and it is further

ORDERED that third-party defendant All About AC Corp. shall, within 30 days of the date of efiling of this order, provide a response to items 1 through 4 in the November 5, 2020 notice to admit, and it is further

ORDERED that third-party defendant Amra Electrical Corporation's motion for a protective order (motion seq no. 007) is granted as to items 4 and 5 in the November 5, 2020 notice to admit, and it is further

ORDERED that third-party defendant Amra Electrical Corporation shall, within 30 days of the date of efiling of this order, provide a response to items 1 through 3 in the November 5, 2020 notice to admit.

Robert R. Reed, J.