THE BOARD OF MANAGERS OF THE SUTTON CONDOMINIUM v. 100 LLC (2023)

In this action arising from the allegedly deficient construction of a condominium building, plaintiffs move under CPLR 3103 for a protective order shielding them from having to respond to a notice to admit served by defendant Bradhurst 100 Development LLC under CPLR 3123. Defendant cross-moves to compel under CPLR 3124. The motion and cross-motion are both granted in part and denied in part.

Defendant's notice to admit, as initially served, sought 88 requested admissions. (See NYSCEF No. 21 at 3.) Defendant has withdrawn 22 of those requests, leaving 66. (See NYSCEF No. 30 at 6.) Plaintiffs argue that the notice to admit as a whole is improper because it assertedly seeks legal conclusions and seeks admissions on matters of fact that are material and in substantial dispute, exceeding the scope of a proper notice to admit. (See NYSCEF No. 36 at 2.) This court agrees in part, but only in part.

A notice to admit may request the truth of any factual matters on which the requesting party 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].) A notice to admit can also seek admissions pertaining to the "genuineness of any papers or documents." (Id.) Thus, a notice to admit can be used only to dispose of "uncontroverted questions of fact or those that are easily provable" (The Hawthorne Group, LLC v RRE Ventures, 7 AD3d 320, 324 [1st Dept 2004].) Notices to admit should not involve "material issues in the case." (Fetahu v N.J. Jersey Transit Corp., 167 AD3d 514, 515 [1st Dept 2018].)

1. This court concludes that plaintiffs must respond to Requests 1-22. These requests do not involve issues in substantial dispute. Rather, they pertain only to uncontroversial features of the Condominium, the accuracy of certain documents, and whether the documents depict or define common elements of the building. (See NYSCEF No. 19 at 5-6.) Nor do plaintiffs seriously contend otherwise.

This Court reaches a different conclusion about the remaining 44 requests for admission. Plaintiffs are not required to respond to these requests.

2. Requests 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 63, 66, 69, 72, 75, 78, 81, 84, and 87 ask plaintiffs to admit or deny that certain portions of the building are not common elements as defined by the condominium declaration. (See NYSCEF No. 36 at 3.) Interpretation of the declaration, and how to apply its definition of "common elements" to particular areas of the building, is a matter of substantial dispute between both parties. (See id.) Given this dispute, whether the parts of the building identified in the requests are—or are not—common elements is both controverted and material to the action.

3. Requests 25, 28, 31, 34, 37, 40, 43, 46, 49, 52, 55, 58, 61, 64, 67, 70, 73, 76, 79, 82, 85, and 88 ask plaintiffs to admit or deny that certain portions of the building are common elements as depicted in tax maps. (NYSCEF No. 36 at 3.) The tax maps are a series of small floor plan depictions that include a legend indicating which sections of the floor are common elements. (See NYSCEF No. 19 at 179-188.) But the tax maps, which were not written by plaintiffs, are at times difficult to make out and do not provide clear answers about whether the depicted parts of the building are or are not common elements. And again, the issue of distinguishing common elements from unit-specific elements of the building is material in the litigation.

Accordingly, it is

ORDERED that the branch of plaintiffs' motion under CPLR 3103 seeking a protective order against defendant Bradhurst's notice to admit dated August 5, 2022, is granted as to Request Nos. 1-22, and is denied as to Request Nos. 24, 25, 27, 28, 30, 31, 33, 34, 36, 37, 39, 40, 42, 43, 45, 46, 48, 49, 51, 52, 54, 55, 57, 58, 60, 61, 63, 64, 66, 67, 69, 70, 72, 73, 75, 76, 78, 79, 81, 82, 84, 85, 87, and 88; and it is further

ORDERED that the branch of plaintiffs' motion under CPLR 3123 seeking to vacate the notice to admit is denied as to Request Nos. 1-22, and granted as to Request Nos. 24, 25, 27, 28, 30, 31, 33, 34, 36, 37, 39, 40, 42, 43, 45, 46, 48, 49, 51, 52, 54, 55, 57, 58, 60, 61, 63, 64, 66, 67, 69, 70, 72, 73, 75, 76, 78, 79, 81, 82, 84, 85, 87, and 88; and it is further

ORDERED that defendant Bradhurst's cross-motion under CPLR 3124 is granted in part and denied in part to the extent set forth above; and it is further

ORDERED that plaintiffs shall respond to Request Nos. 1-22 within 30 days of entry of this order; and it is further

ORDERED that the telephonic status conference currently scheduled for May 5, 2023, is adjourned until May 22, 2023.

4/12/2023

Gerald Lebovits, J.