I. Statement Pursuant to CPLR § 2219 [a]

The following papers were read on the motion by defendants Rivercrest Realty Associates, LLC and SI (Tottenville) TVS, LLC for a protective order pursuant to CPLR § 3103 vacating Plaintiff's Notice to Admit dated April 3, 2025: Notice of Motion dated May 5, 2025; Affirmation in Support of Adam J. Zahn, Esq., with Exhibits A through D annexed thereto; Affirmation of Good Faith of Adam J. Zahn, Esq. (NY St Cts Filing [NYSCEF] Doc Nos. 20-26); Affirmation in Opposition of Joseph A. Romagnolo, Esq., dated June 30, 2025 (NY St Cts Filing [NYSCEF] Doc No. 28); and Reply Affirmation of Adam J. Zahn, Esq., dated July 7, 2025 (NY St Cts Filing [NYSCEF] Doc No. 29).

II. Facts

This action arises from an incident alleged to have occurred on January 29, 2024, when Plaintiff, Frank Rivela, while traversing a parking lot adjacent to the premises commonly known as 7001 Amboy Road, Staten Island, New York, was purportedly caused to trip and fall due to a defective and dangerous condition. The Complaint, filed January 22, 2025, alleges that said condition arose as a result of the negligent maintenance and repair of the premises by the named defendants: Walgreen Eastern Co., Inc., Rivercrest Realty Assoc., LLC, and Tottenville Square LLC.

Issue was joined by Walgreen Eastern Co., Inc. on February 25, 2025, and by the moving defendants on March 28, 2025. On April 3, 2025, Plaintiff served a Notice to Admit upon Movants. The Notice sought to elicit admissions on matters ranging from ownership and control of the property to the existence of an agency relationship and acts of negligence allegedly causing the incident. Movants now seek a protective order vacating the Notice in its entirety on the basis that the requests therein improperly seek admissions of contested and material facts, amounting to ultimate issues of liability more appropriately reserved for adjudication at trial.

III. Conclusions of Law

CPLR § 3103 [a] empowers the Court to issue a protective order to regulate or preclude abusive or improper disclosure practices. The purpose of such authority is to shield parties from disclosure devices that impose undue burden, are designed to harass, or subvert the orderly conduct of litigation.

A Notice to Admit, governed by CPLR § 3123, is a narrowly tailored mechanism intended to remove from dispute "clear-cut factual matters about which there can be no controversy." As stated by the Appellate Division, "[t]he purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial." (see DeSilva v. Rosenberg, 236 AD2d 508 [2d Dept 1997]). Such notices "may not be used to seek admissions of material facts in dispute or to compel admissions of legal conclusions." (see Taylor v. Blair, 116 AD2d 204 [1st Dept 1986]).

The courts have consistently repudiated attempts to transmute a Notice to Admit into a backdoor vehicle for interrogatories, contention discovery, or deposition on written questions. (see Wolin v St. Vincent's Hosp. & Med. Ctr., 304 AD2d 348 [1st Dept 2003]; Berg v Flower Fifth Ave. Hosp., 102 AD2d 760 [1st Dept. 1984]; Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453 [1st Dept 1995]).

A granular review of Plaintiff's Notice to Admit, annexed to the moving papers as Exhibit B (NY St Cts Filing [NYSCEF] Doc No. 24), reveals that it is riddled with impermissible requests [*2]that transgress the permissible scope of CPLR § 3123. The document endeavors to secure concessions as to:

• The identity of the owner and/or party responsible for maintaining and repairing the subject parking lot;

• The existence of agency and employment relationships between various unnamed individuals and the defendants;

• Admissions that directly track the Complaint's allegations of negligence and causation.

Many of the requests conflate multiple factual predicates into compound assertions, utilizing the conjunctive "and/or", a formulation repeatedly criticized by the courts for obfuscating clarity and compelling ambiguous admissions. For instance, Plaintiff seeks admissions that the "defendants, their agents, servants and/or employees" maintained and/or repaired the lot, and that such acts or omissions were negligent. These are not discrete, undisputed facts; they are the linchpin of Plaintiff's theory of liability.

To compel responses to such requests would eviscerate the protective boundaries of CPLR § 3123 and constitute an impermissible circumvention of the burden of proof. Plaintiff, in effect, seeks to litigate his entire prima facie case through this disclosure device, a practice that has been uniformly rebuked. (see Tolchin v Glaser, 47 AD3d 922 [2d Dept 2008]; Falkowitz v Kings Highway Hosp., 43 AD2d 696 [2d Dept. 1973]).

Furthermore, Plaintiff's use of "Tottenville Square LLC" rather than the correct entity "SI (Tottenville) TVS, LLC," who has appeared in the action renders any purported admission legally meaningless and procedurally defective.

Plaintiff's protestations that the requests concern matters of public record (e.g., recorded deeds) are similarly unpersuasive. The fact that ownership information may be accessible via public records does not transform a disputed and operative fact into an undisputed one. Nor does it justify compelling the opposing party to marshal evidence on Plaintiff's behalf, absent a properly tailored discovery request. Indeed, Movants offered in good faith to assist in confirming ownership after completing a diligent investigation, a gesture that was unreciprocated and instead met with adversarial motion practice.

IV. Conclusion and Decretal Paragraphs

In sum, the Notice to Admit at issue constitutes a manifest abuse of CPLR § 3123. It impermissibly seeks admissions as to the gravamen of Plaintiff's claims, attempts to extract conclusions on hotly disputed facts, and improperly combines legal contentions with factual assertions in a manner wholly incompatible with the purpose of the statute. The Court will not countenance the transmogrification of a Notice to Admit into a litigation shortcut.

ORDERED that the motion by Rivercrest Realty Associates, LLC and SI (Tottenville) TVS, LLC for a protective order pursuant to CPLR § 3103 is GRANTED in its entirety; and it is further

ORDERED that Plaintiff's Notice to Admit dated April 3, 2025, is VACATED in its entirety; and it is further

ORDERED that the parties shall proceed with discovery in compliance with Article 31 of the CPLR and the Uniform Rules for the New York State Trial Courts; and it is further

ORDERED that all other relief requested is DENIED.