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Miller v. Hilman Kelly Company

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1991
177 A.D.2d 1036 (N.Y. App. Div. 1991)

Opinion

November 15, 1991

Appeal from the Supreme Court, Chautauqua County, Adams, J.

Present — Doerr, J.P., Denman, Green, Balio and Davis, JJ.


Order and judgment unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Defendants' notices to admit were palpably improper. Defendants did not seek admissions with respect to "'clear-cut matters of fact'" about which they reasonably believed there could be no dispute or controversy (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3123:1, at 710, citing Spawton v. Strates Shows, 75 Misc.2d 813, 814; see, CPLR 3123 [a]; Taylor v Blair, 116 A.D.2d 204, 206). Instead, defendants sought admissions of contested ultimate issues by seeking to have plaintiff subvert the basic premise of his complaint and concede his entire claim against these defendants (Taylor v. Blair, supra; Villa v. New York City Hous. Auth., 107 A.D.2d 619, 620). Because that tactic went far beyond the permissible scope of a notice to admit, plaintiff was under no obligation to respond. Thus, it was error for the court to grant defendants summary judgment on the basis of the unanswered notices.


Summaries of

Miller v. Hilman Kelly Company

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1991
177 A.D.2d 1036 (N.Y. App. Div. 1991)
Case details for

Miller v. Hilman Kelly Company

Case Details

Full title:MICHAEL J. MILLER, Appellant, v. HILMAN KELLY COMPANY and/or its Successor…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 15, 1991

Citations

177 A.D.2d 1036 (N.Y. App. Div. 1991)

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