Ryterband v Alfredo
Annotate this CaseDecided on March 7, 2018
Supreme Court, Warren County
Daniel J. Ryterband and DIANNE M. RYTERBAND, Plaintiffs,
against
Thomas F. Alfredo, Defendant.
63484
Whiteman, Osterman & Hanna, LLP, Albany (William S. Nolan of counsel), for plaintiffs.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Mark E. Cerasano of counsel), for defendant.
Robert J. Muller, J.
Presently before the Court is defendant's motion by Order to Show Cause seeking a protective order pursuant to CPLR § 3103(a) and striking a certain notice to admit.
Plaintiff Daniel J. Ryterband and his wife, plaintiff Dianne M. Ryterband, own certain real property located at 4038 Lake Shore Drive in the Town of Bolton, Warren County. Defendant Thomas F. Alfredo owns certain real property located at 157 South View Drive, which property directly abuts that of plaintiffs. In August 2016, plaintiffs discovered that several trees on their property had been "cut down and removed or delimbed without [their] authorization or consent". The cutting allegedly "occurred at the top of a ridge line on the parcel boundary with [d]efendant's property".
Plaintiffs thereafter commenced this action against defendant in January 2017, alleging three causes of action: (1) trespass; (2) violation of RPAPL 861; and (3) negligence. Issue was joined in March 2017 with defendant asserting two counterclaims against plaintiffs: (1) breach of the "duty to maintain and care for the trees and growth on their property so as to prevent [them] from becoming a hazard . . . to adjoining property owners", and (2) nuisance. While the parties have exchanged paper discovery, depositions have not yet been held.
In January of 2018 plaintiffs served defendant with a notice to admit including 18 separate requests for admission. The first request seeks an admission "that the document attached as Exhibit A is a genuine and authentic copy of a letter dated January 16, 2017, signed by [d]efendant". The second request seeks an admission "that the document attached as Exhibit B is a genuine and authentic copy of a survey map, prepared by Porter Land Surveying, PLLC, [*2]completed on October 21, 2016, of [plaintiffs' property]". Defendant concedes that the first request contained within the notice is proper but argues that the second request is improper, as he "has no knowledge with respect to the survey and cannot be expected to admit the authenticity of a document he did not prepare and in relation to which he has no expertise". Defendant also seeks counsel fees in connection with the motion.
In opposition to this order to show cause to strike the notice to admit plaintiffs first contend that they were essentially forced to serve the notice because defendant has yet to respond to their discovery demands, which were served on March 29, 2017. Plaintiffs next contend that the requests in the notice to admit do not "seek an admission of material issues . . . nor do they seek admissions outside the scope of [d]efendant's knowledge". Rather, according to plaintiffs, the requests "merely seek confirmation of facts that should be well within [d]efendant's knowledge". Defendant's basic quarrel is that the remaining 16 requests are improper because they "go to the ultimate issues in the case".
It is by now well established that "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 [1997]; see Alberto v Jackson, 118 AD3d 733, 734 [2014]; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 771 [2011]). Under the current scheduling Order, depositions are scheduled.
"The underlying purpose of a notice to admit is to eliminate from dispute those matters about which there can be no controversy; it is not to be used to request admission of material issues or ultimate issues or facts" (Howlan v Rosol, 139 AD2d 799, 802 [1988] [citation omitted]; accord Eddyville Corp. v Relyea, 35 AD3d 1063, 1066 [2006]; see CPLR 3123 [a]; Taylor v Blair, 116 AD2d 204, 206 [1986]). Further, "[a] notice to admit may not seek information which would not reasonably be expected to be within the personal knowledge of the party served" (Vasquez v Vengroff, 295 AD2d 421, 422 [2002]; see Taylor v Blair, 116 AD2d at 206).
In this posture the Court has analyzed each of the remaining 17 requests for admission in an effort to determine whether plaintiffs were requesting admissions on ultimate issues or facts. In undertaking this task, it is apparent that plaintiffs will be able to obtain much if not all of the requested information simply by deposing defendant. It is noteworthy that upon receiving the notice to admit, counsel for defendant requested "that [plaintiffs] put the [n]otice on hold until after the completion of depositions which should answer all of [these] questions". This request was declined, counsel stating in pertinent part: "[w]e both know your client is responsible for cutting [the trees], so if he denies it in the [n]otice to [a]dmit and I have to prove it at trial I will seek to recover fees under CPLR 3123". The use of a notice to admit as a substitute for existing discovery devices is plainly improper. In lieu of this robust diet of motion practice the notice could have easily been held in abeyance until the defendant was deposed and these questions asked.
Therefore, having considered the Affidavit of Mark E. Cerasano, Esq., sworn to January 29, 2018 together with Exhibits "A" through "E", the Affidavit of William S. Nolan, Esq., sworn to February 16, 2018 together with Exhibits "A" through "I" and the Reply Affidavit of Mark E. Cerasano, Esq., sworn to February 22, 2018 and upon oral argument held on February 23, 2018, it is hereby
ORDERED that defendant's motion for a protective order striking the notice to admit is granted in its entirety, and it is further
ORDERED that the relief denied the plaintiffs herein is without prejudice for re-submission of a further proper notice to admit following defendant's deposition , and it is further
ORDERED that defendant's motion for counsel fees is granted upon the Court's receipt, on notice, of an amended affidavit of services, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated September 6, 2017 and the Notice of Cross Motion filed on September 22, 2017. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.
Dated: March 7, 2018
Lake George, New York
____________________________________
ROBERT J. MULLER, J.S.C.
ENTER:
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