BERG v. FLOWER FIFTH AVE. HOSP.


102 A.D.2d 760 (1984)

George Berg, Individually and as Father and Natural Guardian of Wendy Berg, et al., Respondents, v. Flower Fifth Avenue Hospital et al., Defendants, and Irving Saxe et al., Appellants

Appellate Division of the Supreme Court of the State of New York, First Department.

June 21, 1984


¶ The action was brought to recover for alleged medical malpractice in connection with the birth of the infant plaintiff on March 28, 1963. After extensive disclosure proceedings, plaintiffs served separate notices to admit upon the doctors and the hospital. Special Term granted the motions for protective orders only as to certain items contained in each notice. ¶ We disagree and find on review of the notices that they are palpably improper and beyond the scope of a notice to admit as provided by CPLR 3123. The statute, which is captioned, "Admissions as to matters of fact, papers, documents and photographs", permits service of a request for admission "of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or 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, subd [a]; emphasis added.) Requests to admit are intended to eliminate from the litigation factual matters which will not be in dispute at trial, not to obtain information in lieu of other disclosure devices (Nader v General Motors Corp., 53 Misc.2d 515, affd 29 A.D.2d 632; Johantgen v Hobart Mfg. Co., 64 A.D.2d 858). Such requests for admissions may not cover ultimate conclusions, which can only be made after a full and complete trial, nor may they properly relate to technical, detailed and scientific information which is the subject for examination by an expert witness (Falkowitz v Kings Highway Hosp., 43 A.D.2d 696; Matter of Haroche v Haroche, 38 A.D.2d 957). As a disclosure device, their purpose is to eliminate from contention factual matters which are easily provable and about which there can be no controversy. Their use serves to expedite the trial by eliminating as issues that as to which there should be no dispute (Two Clinton Sq. Corp. v Friedler, 91 A.D.2d 1195). ¶ On review of the notices served here, we are in agreement that plaintiffs have made no attempt to limit them to factual matters which they reasonably believe are not in dispute. Plaintiffs seek admissions with respect to a wide range of information, including causation, accepted medical practices and procedures, diagnosis and expert medical opinion, all clearly beyond the scope of a notice to admit as a disclosure device (CPLR 3123). Essentially, the notices here amount to a deposition on written questions which, in this case, would permit plaintiffs the benefit of an examination before trial conducted solely by leading questions, which, it has been observed "[j]ustice and fair play dictate * * * should not be allowed." (Snyder v East Coast Cartage Co., 64 Misc.2d 83, 84.) To allow the notice to admit to become perverted into a further form of deposition in the nature of written interrogatories would defeat and detract from its intended purpose. ¶ While we find possibly one or two of the 44 items in the notices that may be proper, we deem it unwise and unnecessary for the court to prune the requests to construct for counsel and the parties a proper notice to admit as suggested in the concurring memorandum and, accordingly, we vacate the notices in their entirety.

Kupferman, J., concurs in a separate memorandum as follows:

While I can concur in the conclusion on the basis that the court should not have to prune requests for admission (see Brandon v Chefetz, 101 A.D.2d 786), I believe that it should be made clear that at least the following request is fully justified: "1. The annexed Hospital record of the infant plaintiff, constitutes the full and complete record of Flower Fifth Avenue Hospital regarding Wendy Berg." ¶ CPLR 3123 (subd [a]) provides for notice to admit where "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." ¶ Clearly, the physician involved is in a much better position to answer this question than the plaintiff is.


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