as Cabrini, Inc. v Hagenbart

[*1] Nicholas Cabrini, Inc. v Hagenbart 2010 NY Slip Op 51443(U) [28 Misc 3d 136(A)] Decided on August 2, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 19, 2010; it will not be published in the printed Official Reports.

Decided on August 2, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-510 K C.

Nicholas Cabrini, Inc., Appellant,

against

Melissa Hagenbart Also Known as MELISSA MURPHY and WADE HAGENBART, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered December 4, 2008. The order, insofar as appealed from, denied the branch of plaintiff's motion which sought summary judgment and directed defendants to verify their responses to plaintiff's notice to admit and serve them upon plaintiff within a specified period of time.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

Plaintiff commenced this breach of contract action against defendants, the personal guarantors of plaintiff's corporate tenant. On September 19, 2008, plaintiff served defendants with a notice to admit. By notice of motion dated October 30, 2008, plaintiff moved for, among other things, summary judgment, on the ground that defendants had failed to submit a response to the notice to admit. In opposition to the motion, defendants asserted, among other things, that the branch of plaintiff's motion seeking summary judgment should be denied since, on October 29, 2008, they had served plaintiff with a response to the notice to admit. Annexed to defendants' opposition papers was a copy of the response together with an affidavit of its service. In reply, plaintiff stated that defendants' response to the notice to admit should be deemed a nullity and plaintiff should be awarded summary judgment since defendants' response was late, unverified and extremely vague. By order entered December 4, 2008, insofar as appealed from, the Civil Court denied the branch of plaintiff's motion which sought summary judgment and directed defendants to verify their response to plaintiff's notice to admit and serve it upon plaintiff within a specified period of time. We note that plaintiff admits in its appellate brief that on December 30, 2008, defendants re-served a copy of their response to the notice to admit together with a verification signed by both defendants.

CPLR 3123 (a) requires a party to respond to a notice to admit within 20 days of service of the notice "or within such further time as the court may allow," and further provides that "the party to whom the request is directed [must] serve[] upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail why he cannot truthfully either admit or deny those matters" (emphasis [*2]added).

After reviewing defendants' response to plaintiff's notice to admit, wherein defendants explained why they could not either admit or deny the first item in plaintiff's notice to admit and denied the other two items in the notice, we find that the Civil Court properly determined that defendants' response was not so evasive as to be a nullity.

Turning to the timeliness of defendants' response to the notice, in Alford v Progressive Equity Funding Corp. (144 AD2d 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, 1987. 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. The Appellate Division further held that since the defendants had not admitted all of the material facts at issue, the Supreme Court had properly denied the plaintiffs' motion for summary judgment.

Similarly, defendants in the case at bar were 15 days late in serving their response to plaintiff's notice to admit. Thus, the Civil Court did not improvidently exercise its discretion in extending the time within which defendants had to respond to the notice. Since defendants have not admitted all of the material facts at issue, the Civil Court properly denied the branch of plaintiff's motion which sought summary judgment (see id.). Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: August 02, 2010