Fadina v Beard

[*1] Fadina v Beard 2012 NY Slip Op 51369(U) Decided on July 24, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 24, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., JJ
570091/12.

Aina Fadina, Plaintiff-Respondent,

against

Meghan Beard, Inc. d/b/a Decorum Model Management, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated July 1, 2011, which granted plaintiff's motion for partial summary judgment on the issue of liability in an action for breach of contract.

Per Curiam.

Order (Andrea Masley, J.), dated July 1, 2011, insofar as appealed from, reversed, with $10 costs, and plaintiff's motion denied.

Plaintiff's notice to admit — containing 136 requests to admit purported facts relating to her performance of and compensation for a series of modeling jobs spanning a five-month period — was palpably improper. "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, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial" (Hawthorne Group v RRE Ventures, 7 AD3d 320, 324 [2004], citing Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 [2000]). Because plaintiff sought admissions that "went far beyond the permissible scope of a notice to admit, [defendant] was under no obligation to respond" (Miller v Hilman Kelly Co., 177 AD2d 1036, 1037 [1991]). Thus, it was error to grant plaintiff partial summary judgment on the basis of the unanswered notices (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 24, 2012