PLEASE TAKE NOTICE that Defendants, Boston Properties, Inc. and The 601 Lexington Avenue Condominium, by its attorneys,

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1 FILED: NEW YORK COUNTY CLERK 11/05/ :13 PM INDEX NO /2014 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/05/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x MITCHELL ELSNER, Index No.: /14 (ECF) Plaintiff, v. BOSTON PROPERTIES, INC., PRITCHARD INDUSTRIES, INC., AND THE 601 LEXINGTON AVENUE CONDOMINIUM, RESPONSE TO NOTICE TO ADMIT Defendants x S I R S: PLEASE TAKE NOTICE that Defendants, Boston Properties, Inc. and The 601 Lexington Avenue Condominium, by its attorneys, Hoey, King, Epstein, Prezioso & Marquez, hereby respond to Plaintiff, Mitchell Elsner s, Notice to Admit dated September 23, 2014 as follows: A notice to admit may not be utilized...as a substitute for other disclosure devices, such as examinations before trial Taylor v. Blair, 116 A.D.2d 204, [1st Dept 1986]. Furthermore, a notice to admit may not be used for matters which are at the heart of the controversy at issue, Orellana v. City of New York, 203 A.D.2d 542, 543 [2d Dept 1994]; Villa v. New York City Hous. Auth., 107 A.D.2d 619, 620 [1st Dept 1985]. 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

2 fundamental and material issues or ultimate facts Meadowbrook-Richman, Inc. v. Cicchiello, 273 A.D.2d 6 [1st Dept 2000]; Murphy v. University Club, 200 A.D.2d 532, 533 [1st Dept 1994]. Requests for admissions with respect to contested facts that go to the very essence of the dispute [are] palpably improper Burnside v. Foglia, 208 A.D.2d 1085 [3d Dept 1994]. 1. Objection as this allegation is better directed at 2. Objection as this allegation is better directed at 3a: 3b: 4a: 4b: 5a: Objection as this allegation is better directed at 5b: Objection as this allegation is better directed at 6a: Objection as the allegation calls for legal conclusions. Objection as such demand is palpably improper and beyond the scope of the purpose of a Notice to Admit. 6b: Objection as this allegation is better directed at ;

3 6c: Objection as the allegation calls for legal 7a: Objection as the allegation calls for legal 7b: Objection as this allegation is better directed at 7c: Objection as the allegation calls for legal 8a: Objection as the allegation calls for legal 8b: Objection as this allegation is better directed at 8c: Objection as the allegation calls for legal

4 9: Objection as the allegation calls for legal conclusions. Objection as such demand is palpably improper and beyond the scope of the purpose of a Notice to Admit. 10a: Objection as the allegation calls for legal 10b: Objection as this allegation is better directed at 10c: Objection as the allegation calls for legal 11a, 11b, 11c, 11d, 11e: Objection as the allegations call for legal conclusions. Objection as such demands are palpably improper and beyond the scope of the purpose of a Notice to Admit. 12: Objection as this allegation is better directed at 13: Objection as this allegation is better directed at

5 14. Objection as this allegation is better directed at Dated: New York, New York October 27, 2014 Yours, etc., HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for DEFENDANTS BOSTON PROPERTIES, INC. AND THE 601 LEXINGTON AVENUE CONDOMINIUM Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) By: Amy Lynn Pludwin TO: Alvin H. Broome & Associates Attorneys for Plaintiff, Mitchell Elsner 225 Broadway, Suite 630 New York, New York Russo & Toner LLP Attorneys for Defendant, Pritchard Industries, Inc. 33 Whitehall Street, 16 th floor, New York, NY

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9 Index No.: /14 (ECF) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MITCHELL ELSNER, -against- Plaintiff, BOSTON PROPERTIES, INC., PRITCHARD INDUSTRIES, INC., AND THE 601 LEXINGTON AVENUE CONDOMINIUM, Defendants. RESPONSE TO NOTICE TO ADMIT HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendant Boston Properties, Inc. and The 601 Lexington Avenue Condominium Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212)