Opinion
2003-01152.
Decided March 8, 2004.
In an action to recover damages for medical malpractice, the defendants Total Neuro Care, P.C., and Ranga C. Krishna appeal from so much of an order of the Supreme Court, Kings County (Levine, J.), dated January 10, 2003, as denied that branch of their motion which was to compel the plaintiff to accept service of a reply to her notice to admit.
Morris, Duffy, Alonso Faley, LLP, New York, N.Y. (Pauline E. Glaser of counsel), for appellants.
Warner Scheuerman, New York, N.Y. (Jonathon D. Warner and Karl E. Scheuerman of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
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 ( see DeSilva v. Rosenberg, 236 A.D.2d 508). It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial ( see id.; Villa v. New York City Hous. Auth., 107 A.D.2d 619, 620). A notice to admit which goes to the heart of the matters at issue is improper ( see DeSilva v. Rosenberg, supra; Kalabovic v. Fort Place Coop., 159 A.D.2d 609, 610; Batchie v. Travelers Ins. Co., 110 A.D.2d 864, 865).
Contrary to the arguments of the appellants Total Neuro Care, P.C., and Ranga C. Krishna, the plaintiff's notice to admit did not seek to determine ultimate disputed facts in this case. The notice to admit merely sought to determine whether certain documents were faxed from the defendants' office to the plaintiff's counsel's office on December 5, 2000.
CPLR 3123(a) specifically provides that a party must submit a sworn response "either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters" (emphasis supplied) ( see Constantino v. Newman, 47 A.D.2d 626; Haig, 2 New York Practice, Commercial Litigation in New York State Courts § 22.2[g]). The appellants' unsworn reply to the notice to admit, based "upon information and belief," was clearly improper ( see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3123:5; Siegel, N.Y. Prac § 364, at 575 [3d ed]). Therefore, the Supreme Court correctly denied the appellants' motion to compel acceptance of the reply.
The appellants' remaining contentions are without merit.
ALTMAN, J.P., S. MILLER, GOLDSTEIN and CRANE, JJ., concur.