        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

586
CA 11-02241
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


TIMOTHY VOIGT, DOING BUSINESS AS V-CON COMPANY,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SAVARINO CONSTRUCTION CORPORATION,
DEFENDANT-RESPONDENT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (PATRICK J. MACKEY OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (RALPH C. LORIGO OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered May 18, 2011 in a breach of contract action.
The order denied without prejudice the motion of plaintiff for summary
judgment and granted the motion of defendant for leave to amend its
response to plaintiff’s notice to admit.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order that denied his
motion for, inter alia, summary judgment on the amended complaint and
granted the motion of defendant for leave to amend its response to
plaintiff’s notice to admit. Contrary to plaintiff’s contention,
Supreme Court did not abuse its discretion in granting defendant leave
to amend its responses to the notice to admit. Pursuant to CPLR 3123
(a), “a party may serve upon any other party a written request for
admission by the latter 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 .
. . .” The statute further provides that “the court, at any time, may
allow a party to amend or withdraw any admission on such terms as may
be just” (CPLR 3123 [b]). Here, “[i]n view of the underlying purpose
of the notice to admit—‘to eliminate from dispute those matters about
which there can be no controversy’ . . . —we discern no abuse of
discretion in [the court’s determination]” (Webb v Tire & Brake
Distrib., Inc., 13 AD3d 835, 838). “A notice to admit which goes to
the heart of the matters at issue is improper . . . Also, the purpose
of a notice to admit is not to obtain information in lieu of other
disclosure devices, such as the taking of depositions before trial”
(DeSilva v Rosenberg, 236 AD2d 508, 508-509; see Sagiv v Gamache, 26
                                 -2-                           586
                                                         CA 11-02241

AD3d 368, 369; Hawthorne Group v RRE Ventures, 7 AD3d 320, 324).
Here, we agree with the court that plaintiff sought admissions to
matters that were at the heart of the controversy, and that plaintiff
was using the notice to admit in place of other discovery devices.
Further, “plaintiff could not have reasonably believed that the
admissions which [he] sought . . . would not be in ‘substantial
dispute at the trial’ as they were identical to certain allegations in
[the] complaint and were denied by [defendant] in its answer”
(Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 772; see
also Cazenovia Coll. v Patterson, 45 AD2d 501, 504).

     We reject the further contention of plaintiff that the court
erred in denying his motion for summary judgment without prejudice to
renew upon the completion of discovery. “Where, as here, ‘the facts
essential to opposing [plaintiff’s] motion may exist but cannot be
stated without conducting discovery of employees of [plaintiff] and
others, the court [properly denied] the motion pursuant to CPLR 3212
(f)’ ” (Brown v Krueger, 13 AD3d 1182, 1182-1183).

     We have considered plaintiff’s remaining contention and conclude
that it is without merit.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
