FILED: RICHMOND COUNTY CLERK 06/19/ :49 AM INDEX NO /2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 06/19/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X DUTCH WILSON, -against- MICKEY'S RIDES 'N' MORE, INC., EUGENE BISHOP AND BRANDON ISAAC, Plaintiff(s), Defendant(s) X Index No.: /2015 AFFIRMATION IN SUPPORT OF MOTION TO STRIKE DEFENDANTS MICKEY'S RIDES 'N' MORE, INC. AND EUGENE BISHOPS NOTICE TO ADMIT OR IN THE ALTERNATIVE COMPEL ACCEPTANCE OF PLAINTIFF S RESPONSE TO SAME NUNC PRO TUNC RAPHAEL WEITZMAN, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following to be true, upon information and belief, under the penalty of perjury pursuant to CPLR 2106: 1. I am a member of Weitzman Law Offices, L.L.C. attorneys for Plaintiff DUTCH WILSON, herein and as such I am fully familiar with the facts and circumstances of this action based upon a review of the case file and the investigation materials contained therein. 2. Defendants MICKEY'S RIDES 'N' MORE, INC. and EUGENE BISHOP intend to rely upon false admissions they wish to attribute to Plaintiff concerning material issues in dispute pursuant to their improperly served Notice to Admit attached hereto as Exhibit Plaintiff seeks an Order, pursuant to CPLR 3123, striking Defendants MICKEY'S RIDES 'N' MORE, INC. and EUGENE BISHOPs Notice to Admit or in the alternative, compelling acceptance of Plaintiff s Response to same Nunc Pro Tunc if this court should find Plaintiff s response to same untimely. 4. Plaintiff seeks an Order (i) striking the patently improper Notice to Admit which Defendants MICKEY'S RIDES 'N' MORE, INC. and EUGENE BISHOP know to be false 1 of 14

2 or in the alternative, compel acceptance of same nunc pro tunc considering any delay in Plaintiff s Response due to an inadvertent office oversight. 5. Defendants MICKEY'S RIDES 'N' MORE, INC. and EUGENE BISHOP Notice to Admit (i) contained questions of material facts; (ii) was served when disclosure was stayed; and (iii) was improperly served. PROCEDURAL HISTORY/ STATEMENT OF FACTS 6. This is an action to recover damages for serious injuries sustained by Plaintiff Wilson in an incident that occurred on June 23, 2012 when Defendant BRANDON ISAAC was operating a forklift owned by Defendant MICKEY'S RIDES 'N' MORE, INC striking Plaintiff inflicting grievous injuries to Plaintiff. 7. Defendant MICKEY'S RIDES 'N' MORE, INC filed a Motion for Summary Judgment on January 6, 2017 which was withdrawn in oral argument on February 2, Defendants MICKEY'S RIDES 'N' MORE, INC and EUGENE BISHOP filed a second Motion for Summary Judgment on February 3, 2017 which was denied by the Court and entered on May 15, 2017, attached hereto as Exhibit 2. Defendants MICKEY'S RIDES 'N' MORE, INC and EUGENE BISHOP appealed your Honor s Decision and Order on May 31, Defendants MICKEY'S RIDES 'N' MORE, INC and EUGENE BISHOP now seek admissions to material questions by their improperly served Notice to Admit dated April 7, 2017, Exhibit 1. Plaintiff seeks an Order striking Defendants Notice to Admit or in the alternative, compelling acceptance of Plaintiffs Response to same nun pro tunc. ARGUMENTS I. PLAINTIFF DID NOT RECEIVE A PROPERLY DIRECTED NOTICE TO ADMIT. 2 of 14

3 9. Plaintiff did not receive a properly directed copy of the Notice to Admit and responded to same within twenty days of receipt. If the court concludes it to be proper for defendants MICKEY'S RIDES 'N' MORE, INC and EUGENE BISHOP to serve a notice to admit during the pendency of their summary judgment motion, that the improper addressing of same to be of no significance and the subjects covered in same to be appropriate, Plaintiff then argues that any untimeliness should be waived as Plaintiff s actions were inadvertent, and not willful. Again, Defendants' Notice to Admit is patently improper as it seeks admissions to facts that are in dispute which go to ultimate issues in the case. 10. Defendants sent Plaintiff two letters nearly a month after receipt of Plaintiff s Response to the Notice to Admit rejecting same, attached hereto as Exhibit 3 and Exhibit 4. Bizarrely, Defendants MICKEY'S RIDES 'N' MORE, INC and EUGENE BISHOP claim that the rejected response received June 30, 2017, in the future. Plaintiff timely responded to Defendants MICKEY'S RIDES 'N' MORE, INC and EUGENE BISHOP notice to admit despite its improper service as documented by their affidavit of service, attached hereto as Exhibit 5. Moreover, Defendants MICKEY'S RIDES 'N' MORE, INC and EUGENE BISHOP rejection of the Response nearly a month after its receipt is untimely, unreasonable and calculated to prejudice Plaintiff. 11. Plaintiff could not respond to a Notice to Admit until received. It would be unfair to deem Plaintiff s allegedly untimely Response an admission in the instant matter. II. NOTICE TO ADMIT IS PATENTLY IMPROPER. 12. The purpose of a Notice to Admit is not to gain admissions of material facts vital to the outcome of a case, but rather to eliminate questions of fact which will not be in dispute during the trial. Instead, it is clearly the intent of the Defendants to illicit certain 3 of 14

4 admissions/concessions from Plaintiff in an attempt to shield themselves from liability, which is unquestionably improper for a Notice to Admit. 13. Of course, if Defendants had presented uncontested records or documents for the purpose of ascertaining the genuine nature of such materials, these are matters to which the parties could stipulate, and of which the Court could take judicial notice without the need for a Notice to Admit. 14. Nevertheless, as developed below in greater detail, the entire balance of Defendants' demands for disclosure of information by admission directly and inherently conflict with the language of the controlling statutory authority (including CPLR 3123) and further violate the principles of law and public policy goals that underlie the use of disclosure through notices to admit. 15. N.Y. C.P.L.R (McKinney) states: At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission 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. 16. The New York Courts have repeatedly held that a party may use a notice to admit only for disposing of uncontroverted questions of fact. Washington v. Alco Auto Sales, 199 A.D.2d 165, 605 N.Y.S. 271 (1st Dep't 1993).4 A notice to admit is not to be used as a 4 of 14

5 means of compelling an opposing party to admit to the most fundamental and material of the contested issues of fact. Id. at 165. In Miller v. Hillman, 177 A.D. 1036, 578 N.Y.S.2d 319 (4th Dep't 1991), the court held that the notice to admit was improper because it sought admissions of contested ultimate issues of fact, and, thus, the party was under no obligation to respond. Id. at Quoting from the Second Department's decision in DeSilva v. Rosenberg, 236 A.D.2d 508, 654 N.Y.S.2d 30 (2d Dept.1997), the Court in Midland Funding LLC v. Valentin, 40 Misc.3d 266, 966 N.Y.S.2d 656, (Dist. Ct., Nassau County 2013) emphasized that [t]he purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper. 18. Priceless Custom Homes, Inc. v. O'Neill, 104 A.D.3d 664, , 960 N.Y.S.2d 455, 457 (2013), 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 (Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at , 930 N.Y.S.2d 643, quoting DeSilva v. Rosenberg, 236 A.D.2d 508, 508, 654 N.Y.S.2d 30; see Rosenfeld v. Vorsanger, 5 A.D.3d 462, 462, 772 N.Y.S.2d 597). It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial (Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at 772, 930 N.Y.S.2d 643, quoting DeSilva v. Rosenberg, 236 A.D.2d at 508, 654 N.Y.S.2d 30; see Rosenfeld v. Vorsanger, 5 A.D.3d at 462, 772 N.Y.S.2d 597). A notice to admit which goes to the heart of the matters at issue is improper (Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at 772, 930 N.Y.S.2d 643, quoting DeSilva v. Rosenberg, 236 A.D.2d at 508, 654 N.Y.S.2d 5 of 14

6 30; see Tolchin v. Glaser, 47 A.D.3d 922, 923, 849 N.Y.S.2d 439; Rosenfeld v. Vorsanger, 5 A.D.3d at 462, 772 N.Y.S.2d 597; Glasser v. City of New York, 265 A.D.2d 526, 526, 697 N.Y.S.2d 167; see also Riner v. Texaco, Inc., 222 A.D.2d 571, 572, 635 N.Y.S.2d 658). 19. In the case of Falkowitz v. Kings Highway Hosp., 43 A.D.2d 696, 696, 349 N.Y.S.2d 790, (1973), it was the opinion of the Court that, the notice is patently improper and violates the scope and intendment of CPLR 3123 (formerly Civ. Prac. Act, s 322), which governs the application for and use of the requested admissions. The purpose of such a notice procedure is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial, but only to eliminate from the issues in litigation matters which will not really be in dispute at the trial. 20. Washington v. Alco Auto Sales, 199 A.D.2d 165, 165, 605 N.Y.S.2d 271, 272 (1993), 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 A.D.2d 168, 566 N.Y.S.2d 611), and is certainly not intended as a means of compelling an opposing party to admit to the most fundamental and material of the contested issues of fact, as plaintiffs appear to be endeavoring to do (Miller v. Hilman Kelly Co., 177 A.D.2d 1036, 578 N.Y.S.2d 319). 21. Meadowbrook-Richman, Inc. v. Cicchiello, 273 A.D.2d 6, 6, 709 N.Y.S.2d 521, 522 (2000), A notice to admit pursuant to CPLR 3123(a) is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial (Washington v. Alco Auto Sales, 199 A.D.2d 165, 605 N.Y.S.2d 6 of 14

7 271). Plaintiff's notice to admit improperly demanded that defendant concede matters that were in dispute. Thus, defendant had no obligation to furnish admissions in response to plaintiff's notice (see, Orellana v. City of New York, 203 A.D.2d 542, 543, 612 N.Y.S.2d 943). 22. Where, as in the case at bar, the Notice to Admit is beyond the scope of its intended use, it is appropriate for the Court to strike same. See Nader v. General Motors Corp., 53 Misc2d 515, aff'd 29 AD2d 632 (1st Dept. 1967). 23. Defendants MICKEY'S RIDES 'N' MORE, INC. and EUGENE BISHOP, in their Notice to Admit, seek admission from Plaintiff regarding matters which will be in dispute at trial, matters considered fundamental and material to the issues in the case at hand, such as whether Plaintiff received a payment from Defendant MICKEY'S RIDES 'N' MORE, INC. and whether Plaintiff received any worker s compensation benefits. 24. As such, a majority of the items contained in Defendant's Notice to Admit are improper and said Notice to Admit should, therefore, be stricken by this Honorable Court. See, CPLR 3123(a) (indicating that a party may serve a Notice to Admit regarding matters of fact as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial... ). Defendants cannot reasonably believe that there could be no substantial dispute (CPLR 3123) regarding Plaintiff s alleged signature on the check and his alleged receipt of workers compensation. Rosenfeld v. Vorsanger, 5 A.D.3d 462, 772 N.Y.S.2d 597 (2d Dep't 2004), [t]he purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. 25. As a disclosure device, the purpose of a Notice to Admit is to eliminate from contention factual matters which are easily provable and about which there can be no controversy. The 7 of 14

8 demands in the case at bar, however, do not by any stretch of the imagination fit into such a category of fact without controversy thus entitling Plaintiff to the relief requested herein. 26. Defendants perversion of the Notice to Admit device into an unsanctioned form of examination by admission would defeat and detract from the narrow recognized intended purpose. Where the demands relate to material legal issues, contested facts and ultimate liability this device must not be permitted to overshadow the role of other normal and longrecognized discovery processes. 27. For these very reasons, Defendant's Notice to Admit should be stricken as its aim is clearly to prevent the herein Plaintiff from adequately prosecuting his claim at a later point in this litigation. III. A NOTICE OF MOTION FOR SUMMARY JUDGMENT STAYS ALL DISCLOSURE 28. Civil Practice Law and Rules ( CPLR ) 3214(b) provides, in pertinent part, that [s]ervice of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. By the very terms of CPLR (b), the automatic stay of disclosure ends upon determination of the motion. Black's Law Dictionary defines determination as [a] final decision by a court or administrative agency (Black's Law Dictionary (2d Pocket ed 2001). This Court denied Defendants Motion for Summary Judgment on March 30, Where the Order determining the Motion for Summary Judgment did not specifically provide for the resumption of disclosure, CPLR 3214(b) should be interpreted to require resumption of disclosure upon the date of service of Notice of Entry, which is the date the Order becomes 8 of 14

9 effective (see Weinstein Korn & Miller, New York Civil Practice P ). Notice of Entry was filed by Plaintiff on May 16, 2017 attached hereto as Exhibit The second department Court has made it clear that disclosure resumes only once the Notice of Entry is served. In view of the court's now having determined plaintiff's motion for summary judgment and denying same, the stay of disclosure, pursuant to CPLR 3214(b), is now vacated and the terms of the so-ordered stipulation are now revived; the only modification being that plaintiff's time to serve complete verified responses to defendant's discovery demands is extended to 60 days from service upon plaintiff of a copy of this order with notice of entry. Rizz Management Inc. v. Kemper Ins. Co., 2004 WL , at *4 (N.Y. Civ.Ct.,2004). permitted further disclosure and directed that it be completed within 60 days after service of that order, with notice of entry Grosse v. Friedman, 498 N.Y.S.2d 863, 864, 118 A.D.2d 539, 540 (N.Y.A.D. 2 Dept.,1986) 30. Defendants Notice to Admit dated April 7, 2017 was prima facie ineffective and unlawful, as your Honor s Order and Decision denying Defendants Summary Judgment Motion filed on February 3, 2017 was entered May 16, Since Disclosure had been stayed, Defendants should never have served a Notice to Admit. 31. NYCTL 2011-A Trust v. 816 Crossbay LLC, 42 Misc. 3d 1203 (A), 983 N.Y.S.2d 204 (Sup. Ct. 2013), Service of a notice of motion seeking summary judgment stays disclosure until determination of the motion unless the court orders otherwise (CPLR 3214, subd [b]). If when a motion for summary judgment is made- there is outstanding any obligation to disclose, whether pursuant to a mere notice or a court order, the mere making of the motion stays the disclosure. The stay of disclosure is automatic (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3214:2, p 856) Federal Deposit Ins. Corp. 9 of 14

10 v. Hyer, 66 A.D.2d 521, 527 (2d Dep't 1979) [internal quotations omitted]. 32. Further, the stay instigated at the bringing of the motion continues while the motion is subjudice. Pursuant to Second Department decisional law [and the express language of the CPLR cited immediately below], pending adjudication of a motion for summary judgment, any prior orders directing discovery are automatically stayed. Federal Deposit Ins. Corp. v. Hyer, 66 A.D.2d 521, 527 (2d Dep't 1979). CPLR entitled Motions heard by judge supervising disclosure; stay of disclosure reads in pertinent part: (b) Stay of disclosure. Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise. 33. Defendants had the opportunity to request the Court to grant leave to continue with discovery, but instead acted in contravention of the automatic stay and compelled Plaintiff to respond to their unlawful Notice to Admit. The Court in John Eric Jacoby, M.D., P.C. v. Loper Assocs., Inc., 249 A.D.2d 277, 279, 670 N.Y.S.2d 912, 913 (1998) held that Although the stay is automatic, a court can direct otherwise. Thus, if there were any legitimate need for discovery, the defendant could and should have requested it in its opposing papers responding to the plaintiff's motion for partial summary judgment. IV. THE FAILURE TO RESPOND TO CO-DEFENDANTS' NOTICE TO ADMIT WAS INADVERTENT, NOT WILLFUL. 34. Defendants rejection of Plaintiff s Response to their Notice to Admit as untimely would amount to an admission of all allegations if proper and willfully not responded to. Plaintiffs 10 of 14

11 had no intent to make any admissions or respond untimely. 35. In Clark v. Prudential Ins. Co. of Am., 18 A.D.2d 1090, 1090, 239 N.Y.S.2d 553, 554 (1963), the Court stated Although the request for the admissions was served almost two years prior to the date of the instant motion, defendant has not been substantially prejudiced by the delay in plaintiffs' failure to respond. Such failure was due to the plaintiffs' attorney's oversight which, in our opinion, is excusable under the circumstances here (Municipal Metallic Bed Mfg. Corp. v. Dobbs, 253 N.Y. 313, 317, 171 N.E. 75, 76, 68 A.L.R. 1376; Gallo v. Bosco, 13 A.D.2d 982, 216 N.Y.S.2d 501; Rusnak v. Doby, 267 App.Div. 122, 44 N.Y.S.2d 730; Allen v. Fink, 211 App.Div. 411, 415, 207 N.Y.S. 428, 435, 436; Gideon v. Dwyer, 17 Misc. 233, 40 N.Y.S. 1053, affd. 7 App.Div. 608, 41 N.Y.S and 12 App.Div. 629, 42 N.Y.S. 1125; Dukas v. Tolmach, Sup., 142 N.Y.S.2d 176; In re Moroney's Estate, 203 Misc. 557, 118 N.Y.S.2d 349; Connolly v. F. M. Charlton Co., Sup., 118 N.Y.S.2d 229). In the interest of justice, plaintiffs should now be afforded an opportunity to serve the response, as required by the statute (Civ.Prac.Act, 322), to the defendant's request for admissions. 36. It is respectfully submitted that Plaintiff s alleged failure to respond timely to Defendants' Notice to Admit was not willful, but merely a result of inadvertent office oversight. V. THE COURT HAS DISCRETION TO COMPEL ACCEPTANCE OF A RESPONSE NUNC PRO TUNC. 37. The twenty-day time limit prescribed under CPLR 3123 is not a hard and fast rule and the Court has the discretion to compel acceptance of a Response served beyond the statutory period. 38. Torres v. McCormick, 35 A.D.3d 443, 444, 826 N.Y.S.2d 364, 365 (2006), the court 11 of 14

12 providently exercised its discretion in granting those branches of Chase s motion which were to withdraw that admission and to compel the plaintiff to accept its late response to the notice to admit, denying ownership of the offending vehicle (see C. Pavlou, Inc. v. Gargano, 228 A.D.2d 632, 644 N.Y.S.2d 994; Riner v. Texaco, Inc., 222 A.D.2d 571, , 635 N.Y.S.2d 658; Langdon v. WEN Mgt. Co., 147 A.D.2d 450, 451, 537 N.Y.S.2d 603). 39. Nicholas Cabrini, Inc. v. Hagenbart, 28 Misc. 3d 136(A), 957 N.Y.S.2d 637 (App. Term 2010), Turning to the timeliness of defendants' response to the notice, in Alford v. Progressive Equity Funding Corp. (144 A.D.2d 756 [1988] ), a case analogous to the instant case, the plaintiffs moved for summary judgment on December 2, 1987, based on the defendants' failure to respond to the plaintiffs' notice to admit, which had been served on November 5, On December 7, 1987, the defendants served a response to the plaintiffs' notice to admit. The Supreme Court denied the plaintiffs' motion for summary judgment, and, on appeal, the Appellate Division, Third Department, held that the Supreme Court had properly exercised its discretionary power to extend the time within which the defendants had to respond to the plaintiffs' notice to admit. 40. Alford v. Progressive Equity Funding Corp., 144 A.D.2d 756, 757, 534 N.Y.S.2d 749, 751 (1988), plaintiffs contend that Supreme Court erred in permitting defendants' late service of replies to the notices to admit. CPLR 3123(a) requires a response to a notice to admit within 20 days of service of the notice or within such further time as the court may allow. Supreme Court exercised this discretionary power to extend the time to respond, and we see no abuse of discretion. 41. Retamozzo v. State, 36 Misc. 3d 1237(A), 960 N.Y.S.2d 52 (Ct. Cl. 2012), the record 12 of 14

13 does not support claimant's assertion that the statements in his requests to admit must be deemed admitted. Defendant asked for relief from the requirement that it respond to the requests to admit, and the Court in its February 27 order essentially granted such relief nunc pro tunc. The fact that the 20 days had passed when such application was made did not bar the Court from extending the deadline while discovery was proceeding. 42. In the case of N450JE LLC v. Priority 1 Aviation, Inc., 102 A.D.3d 631, 959 N.Y.S.2d 156 (2013), defendant was properly compelled to accept plaintiffs' late responses to its notice to admit. 43. Plaintiff requests that Justice not be circumvented and Defendants be compelled to accept his Response to the Notice to Admit nunc pro tunc if same isn t stricken. CONCLUSION 44. It is respectfully submitted that the admissions to Defendants' Notice to Admit should be deemed waived for the following reasons: I. The alleged facts for which Defendants seek admissions are improper for a Notice to Admit, pursuant to CPLR 3123, as Defendants seek admissions on matters which go to material or ultimate issues in the case. II. Defendants Notice to Admit dated April 7, 2017 was improperly served while discovery was stayed during defendant s summary judgment motion which was entered May 16, In the alternative, if this court disagrees with the contentions above, Plaintiff s requests that this response be accepted nunc pro tunc. Plaintiff's alleged failure to timely respond to the Notice to Admit, if untimely, was unintentional and Defendants are at least partly responsible for the failure, as their affidavit of service confirms improper service. 13 of 14

14 WHEREFORE, based on the foregoing, Plaintiff respectfully requests that the Court issue an Order pursuant to CPLR 3123, Striking Defendants' Notice to Admit as patently improper or in the alternative compelling Defendants acceptance of Plaintiff s Response nunc pro tunc, together with such other and further relief as the Court deems just and proper. Dated: New York, New York June 19, 2017 /s/ Raphael Weitzman RAPHAEL WEITZMAN 14 of 14