Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51451(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 12, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, second and fifth causes of action are denied, and the branches of defendant’s motion seeking summary judgment dismissing the third, fourth and sixth causes of action are deemed an application to mark those causes of action discontinued with prejudice, and the application is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

On September 27, 2011 and November 2, 2011, defendant mailed letters scheduling examinations under oath (EUOs) of plaintiff. On February 24, 2012, after this action was commenced, defendant served a notice to admit, pursuant to CPLR 3123, seeking plaintiff’s written admission that it had failed to appear at the scheduled EUOs. On March 19, 2012, after plaintiff failed to respond to the notice to admit, defendant moved for summary judgment dismissing the complaint on the ground of plaintiff’s nonappearances at the duly scheduled EUOs, relying solely upon its notice to admit to establish plaintiff’s nonappearances (see CPLR 3123 [a]). In support of its motion, defendant also proffered a stipulation, signed by plaintiff’s attorney and a representative of defendant, providing that the third, fourth and sixth causes of action of the complaint were discontinued with prejudice.

“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. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” (DeSilva v Rosenberg, 236 AD2d 508, 508 [1997]; see Williams v City of New York, 125 AD3d 767 [2015]; Priceless Custom Homes, Inc. v O’Neill, 104 AD3d 664 [2013]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007]). Contrary to defendant’s assertion, its notice to admit went to the heart of the controversy (see Priceless Custom Homes, Inc., 104 AD3d at 664-665; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770 [2011]). Consequently, plaintiff’s failure to timely respond to the notice to admit should not be deemed an admission of the matters stated therein, since the admissions sought by defendant were improper (see Williams v City of New York, 125 AD3d at [*2]768; Alberto v Jackson, 118 AD3d 733 [2014]; see generally CPLR 3123 [a]). We note that plaintiff’s remaining contention lacks merit (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). As a result, the branches of defendant’s motion seeking summary judgment dismissing the first, second and fifth causes of action should have been denied.

As plaintiff raised no challenge to the stipulation of settlement, the branches of defendant’s motion seeking summary judgment dismissing the third, fourth and sixth causes of action should have been deemed an application to mark those causes of action discontinued with prejudice and the application should have been granted.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, second and fifth causes of action are denied, and the branches of defendant’s motion seeking summary judgment dismissing the third, fourth and sixth causes of action are deemed an application to mark those causes of action discontinued with prejudice, and the application is granted.

Pesce, P.J., Weston and Elliot, JJ., concur.