DEFENSE SUMMARY JUDGMENT MOTION IN HORSEBACK RIDING ACCIDENT CASE GRANTED DESPITE TWO IGNORED NOTICES TO ADMIT--WHICH CAN'T COVER ISSUES THAT NEED A TRIAL

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Nacherlilla v. Prospect Park Alliance, Inc.

Date: Oct. 11, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury lawyer)

Comment: A simple case made very interesting because the plaintiff's lawyer tried to be "slick" -- which I can appreciate. Plaintiff had an accident while horseback riding in Prospect Park Brooklyn. She sued the City of New York (which owned the park), the stable owner and the Prospect Park Alliance. The Alliance made a summary judgment motion, asking the Court to let it out of the case because it did not operate or supervise the horseback riding activity. And it appears from the appeals court's decision that the plaintiff really had no proof that the Alliance played a part in the stable's operation. Now here's the slick part.

The plaintiff tried to "backdoor" the Alliance into the case, by twice serving a Notice to Admit. A Notice to Admit is a cool lawsuit discovery tool that lets one side serve a written statement on the other side to ask if it admits the truth of something. The intended use of a Notice to Admit is to make things simple for trial and to get the other side in a lawsuit to agree to a fact that's not really in dispute. Examples are asking the other side to admit that a photograph is accurate, or that a document is genuine, or that the sun rises in the east and sets in the west, and so forth. Now the trick part is that if a party fails to respond to a Notice to Admit -- which is usually by usually by admitting or denying the truth of what the side serving the Notice claims is true -- the truth of the statements in the Notice are deemed admitted.

Plaintiff's lawyer here tried to be cute and asked the Alliance to admit that it had control over the stable. Twice. And since the Alliance never responded, this statement was deemed admitted.

Now the lower court judge bought that this admission raised a fact issue so as to justify denying summary judgment to the Alliance, keeping it in the case.

The appeals court said, "No, no, no": a Notice to Admit is not intended to cover the ultimate fact issues of the case, such as if the Alliance controlled the stable operation. The appeals court held that this should be an issue for trial, except that it found that the Alliance had made out a sufficient case for its summary judgment, and this decision lets the Alliance out of the lawsuit. Better luck next time plaintiff.

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In an action to recover damages for personal injuries, the defendant Prospect Park Alliance, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated May 19, 2010, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Prospect Park Alliance, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted.

The plaintiff allegedly was injured in a horseback riding accident which occurred near an entrance to Prospect Park in Brooklyn while she was on a guided tour. The horse which she was riding at the time of the accident allegedly was provided to her by the defendant Kensington Stables. She commenced the instant action to recover damages for personal injuries against, among others, Kensington Stables, Inc., Kensington Stables, the City of New York, and Prospect Park Alliance, Inc. (hereinafter the Alliance). The Alliance moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it was not liable for the plaintiff's injuries because it did not exercise control over Kensington Stables, which allegedly operated the guided tour and rented the horse to the plaintiff. The plaintiff opposed the motion, contending, among other things, that the Alliance failed to respond to two notices to admit and, thus, was deemed to have admitted the allegations contained therein, including that it owned, leased, contracted with, operated, controlled, maintained, managed, inspected, serviced, and supplied materials and/or equipment to all or part of Kensington Stables.

The Supreme Court, inter alia, denied the Alliance's motion for summary judgment, finding that the Alliance failed to respond to the notices to admit within the time prescribed by a preliminary conference order and, therefore there were triable issues of fact as to whether the Alliance owned, maintained, supervised, or managed any part of the horse‑riding activities performed by Kensington Stables. The Alliance appeals from so much of the order as denied its motion for summary judgment, and we reverse insofar as appealed from.

CPLR 3123 provides, in relevant part, that "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 and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry" (CPLR 3123[a]). If the requested admission is not denied or otherwise explained "within twenty days after service thereof or within such further time as the court may allow," then the requested admission will be deemed admitted (id.). "The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial" (DeSilva v. Rosenberg, 236 A.D.2d 508, 508, 654 N.Y.S.2d 30; see Rosenfeld v. Vorsanger, 5 A.D.3d 462, 462, 772 N.Y.S.2d 597). "It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial" (DeSilva v. Rosenberg, 236 A.D.2d at 508, 654 N.Y.S.2d 30). "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" (id. at 509, 654 N.Y.S.2d 30). "A notice to admit which goes to the heart of the matters at issue is improper" (id. at 508, 654 N.Y.S.2d 30; see Tolchin v. Glaser, 47 A.D.3d 922, 849 N.Y.S.2d 439; Glasser v. City of New York, 265 A.D.2d 526, 697 N.Y.S.2d 167).

Here, the plaintiff could not have reasonably believed that the admissions which she sought on the issue of control by the Alliance over Kensington Stables would not be in "substantial dispute at the trial" as they were identical to certain allegations in her complaint and were denied by the Alliance in its answer (CPLR 3123[a]; see Washington v. Alco Auto Sales, 199 A.D.2d 165, 605 N.Y.S.2d 271; cf. Villa v. New York City Hous. Auth., 107 A.D.2d 619, 484 N.Y.S.2d 4). Furthermore, the admissions sought on the issue of control "were at the heart of the controversy" in this case (Rosario v. City of New York, 261 A.D.2d 380, 381, 689 N.Y.S.2d 519; see Riner v. Texaco, Inc., 222 A.D.2d 571, 571-572, 635 N.Y.S.2d 658) and therefore were improper (see Morreale v. Serrano, 67 A.D.3d 655, 655-656, 886 N.Y.S.2d 910; Tolchin v. Glaser, 47 A.D.3d at 923, 849 N.Y.S.2d 439; Lolly v. Brookdale Univ. Hosp. & Med. Ctr., 45 A.D.3d 537, 537, 844 N.Y.S.2d 718; Sagiv v. Gamache, 26 A.D.3d 368, 369, 810 N.Y.S.2d 481). Accordingly, it was error for the Supreme Court to rely on the notices to admit for the purpose of finding the existence of triable issues of fact precluding the award of summary judgment.

The alternative grounds for affirmance presented by the plaintiff (see Parochial Bus Systems v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241) are without merit. Contrary to her contention, the Alliance established its prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate that it did not exercise control over Kensington Stables or its tour guides and, thus was not vicariously liable for their acts or omissions (see Hannold v. First Baptist Church, 254 A.D.2d 746, 746, 677 N.Y.S.2d 859; Davis v. Shelton, 33 A.D.2d 707, 304 N.Y.S.2d 722). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). She failed to raise a triable issue of fact as to whether the Alliance owed her a duty of care as an agent of the City which owned the park. "Landowners ... have a duty to act in a reasonable manner to prevent harm to those on their property. In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control" (D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 [citation omitted]; see Kern v. Ray, 283 A.D.2d 402, 402, 724 N.Y.S.2d 457). This duty emanates "from the obligation of a landowner to keep its premises free of known dangerous conditions" (D'Amico v. Christie, 71 N.Y.2d at 85, 524 N.Y.S.2d 1, 518 N.E.2d 896). A duty of care on the part of a managing agent may arise "where there is a comprehensive and exclusive management agreement between the agent and the owner [of the property] which displaces the owner's duty to safely maintain the premises" (Roveccio v. Ry Mgt. Co., Inc., 29 A.D.3d 562, 562, 816 N.Y.S.2d 114). Here, the plaintiff failed to raise a triable issue of fact as to the existence of an agreement which would require the Alliance to safely maintain the premises on behalf of the City. Additionally, the plaintiff failed to raise a triable issue of fact as to whether the Alliance owed her a duty of care by virtue of its relationship with Kensington Stables. The evidence which the plaintiff submitted demonstrating that the Alliance maintains a website that promotes the use of the bridle paths and refers park visitors to Kensington Stables for horse rentals and riding lessons was insufficient to constitute a "holding out to the public" which would estop the Alliance from disclaiming liability for the alleged negligence of Kensington Stables and its tour guide (Aronov v. Bruins Transp., 294 A.D.2d 522, 523, 742 N.Y.S.2d 389).

Accordingly, the Supreme Court should have granted the Alliance's motion for summary judgment dismissing the complaint insofar as asserted against it.

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