Onekey, LLC v Donato Inc.

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Onekey, LLC v Donato Inc. 2018 NY Slip Op 32592(U) October 10, 2018 Supreme Court, New York County Docket Number: 653270/2016 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 653270/2016 [*FILED: 1] NEW YORK COUNTY CLERK 10/12/2018 10:03 AM NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 10/12/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART . IAS MOTION 32 Justice -----------------------------------------------------------------------X ONEKEY, LLC, INDEX NO. 653270/2016 MOTION DATE N/A, N/A MOTION SEQ. NO. 006 007 Plaintiff, -vDONATO INC., ANTHONY CAIAZZO, J. CAIAZZO PLUMBING & HEATING CORP. DECISION AND ORDER Defendants. ------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 006) 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 180, 183 were read on this motion to/for PROTECTIVE ORDER The following e-filed documents, listed by NYSCEF.document number (Motion 007) 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 181, 182, 184, 185 PROTECTIVE ORDER were read on this motion to/for Motion Sequence Numbers 006 and 007 are consolidated for disposition. The motion (MS006) by defendant Donato, Inc., ("Donato") for a protective order striking plainJiffs notice to admit is granted. The motion (MS007) by Anthony Caiazzo and J. Caiazzo Plumbing & Heating Corp. ("Caiazzo") for a protective order striking plaintiffs notice to admit is granted. Background This action arises out of a construction project located at 84-.86 White Street, New York, New York. Plaintiff served as a general contractor and defendant Donato was hired to install a sprinkler system. Plaintiff claims that Donato's negligence in performing its work caused water · damage to the premises after a fire sprinkler head malfunctioned. After the damage, plaintiff expended its own resources cleaning up the mess. 65327012016 ONEKEY, LLC vs. DONATO INC. Motion No. 006 007 Page 1of4 1 of 4 INDEX NO. 653270/2016 [*FILED: 2] NEW YORK COUNTY CLERK 10/12/2018 10:03 AM NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 10/12/2018 Plaintiff claims that after it executed its subcontract with Donato, Donato allegedly failed to apply for and obtain the necessary permits for the installation of the appropriate fire suppression (sprinkler) equipment in the building. Donato now alleges that Caiazzo applied for the required permits and plaintiff was not informed of any of these occurrences. Plaintiff claims it had no idea Caiazzo was working on the project and theorizes that Caiazzo was brought on because it has the requisite license to do the sprinkler work while Donato did not. Both defendants move for a protective order vacating plaii;itiffs notices to admit. Defendants claim that these notices to admit are improper because they seek admissions on the ultimate issues in the· case, request defendants to admit or deny legal conclusions and demand admissions from each defendant concerning facts exclusively within the knowledge of the other defendant. In opposition, plaintiff insists that its notices to admit are proper because they address undisputed or indisputable facts. Plaintiff contends that if defendants were to respond it would facilitate a prompt resolution of the case. Discussion "A noti~e to admit may i:iot be utilized to request admission of material issues or ultimate or conclusory facts, and is only properly used to eliminate froni trial matters which are easily provable and about which there can be no controversy" (Samsung America, Inc., v YugoslavKorean Consulting & Trading Co., Inc., 199 AD2d 48, 49, 604 NYS2d 112 [!st Dept 1993]). A notice to admit may not be used to seek admissions "which go to the very heart of the matters at issue" (Zahar v Hair Club for Men Ltd., 200 AD2d 453, 454, 607 NYS2d 5 [!st Dept 1994]). Here, a review of both notices to admit reveal that they improperly seek admissions about material issues in this case. For instance, in the notice to admit sent to Caiazzo, plaintiff asks 653270/2016 ONEKEY, LLC vs. DONATO INC. Motion No. 006 007 Page 2 of 4 2 of 4 INDEX NO. 653270/2016 [*FILED: 3] NEW YORK COUNTY CLERK 10/12/2018 10:03 AM NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 10/12/2018 Caiazzo to admit or deny whether "Donato did not inform Onekey of such agreement(s) by Defendants" (NYSCEF Doc. No. 171, '\[ 7). Clearly, it is improper for plaintiff to ask Caiazzo to admit or deny information about whether Donato informed plaintiff about an agreement with Caiazzo. The notice to admit also seeks admissions about the cause of the leak (id.'\[ 11), the damage caused by the leak (id.'\['\[ 17, 18) arn;l about the status of Caiazzo's and Donato's licenses to perform sprinkler work (see id.'\['\[ 24-32, 38-40). These are the central issues of this action: who is responsible for the leak, the extent of the damages caused by the leak and whether defendants ignored applicable rules requiring contractors to have a license to do sprinkler work. The notice to admit sent to Donato is no better. It contains many improper requests, including "Donato never requested nor received any such permission from Onekey, i.e., to enter into any such agreement(s) with Anthony Caiazzo and/or J. Caiazzo Plumbing & Heating Corp. (NYSCEF Doc. No. 156 '\[ 12). Plaintiff also asks, "One or more persons associated with Donato performed Sprinkler Work on the Project without being a licensed master fire suppression piping contractor, and without working under the direct and continuing supervision of a licensed master fire suppression piping contractor" (id. '\[ 15). Plaintiffs theory of the case is that "Caiazzo improperly let Donato use his license, and Donato improperly used it, and Caiazzo 'self-certified' aspects ofDonato's work" (NYSCEF Doc. No. 181 [plaintiffs opposition to Caiazzo's motion]). There is no question that majority of the requested admissions are flatly improper because they go to the heart of the matter. While the Court appreciates that plaintiffs counsel offered to withdraw certain requests, this Court strikes both notices to admit in their entirety. These questions are for a deposition or interrogatories and the Court will not micromanage discovery. Page 3 of 4 653270/2016 ONEKEY, LLC vs. DONATO INC. Motion No. 006 007 3 of 4 INDEX NO. 653270/2016 [*FILED: 4] NEW YORK COUNTY CLERK 10/12/2018 10:03 AM NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 10/12/2018 Accordingly, it is hereby ORDERED that the motion by defendant Donato, Inc. for a protective order striking plaintiffs notice to admit is granted; and it is further ORDERED that the motion (MS007) by defendants Anthony Caiazzo and J. Caiazzo Plumbing & Heating Corp. for a protective order striking plaintiffs notice to admit is granted. Next conference: 12-4-18 @2:15 p.m. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED· GRANTED D DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DIS GI\!. ARLENE P. BLUTH GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 4 of 4 653270/2016 ONEKEY, LLC vs. DONATO INC. Motion No. 006 007 4 of 4

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