General
Two Clinton Square Corp., Appellant, v. Sydney Friedler et al., Respondents; Alan Rosoff, Third-Party Plaintiff-Respondent, v. Smith, Sovik, Kendrick, McAuliffe & Schwarzer, Third-Party Defendant-Appellant
91 A.D.2d 1195·New York Supreme Court, Appellate Division·1983·NY
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Opinion
Two Clinton Square Corp., Appellant, v Sydney Friedler et al., Respondents. Alan Rosoff, Third-Party Plaintiff-Respondent, v Smith, Sovik, Kendrick, McAuliffe & Schwarzer, Third-Party Defendant-Appellant.
(Appeal No. 2.)
[MAJORITY]
Order unanimously affirmed, without costs. Memorandum: Special Term properly vacated the notice to admit. A notice to admit may only be used to establish matters of fact. It is not intended to cover ultimate conclusions but only to eliminate as issues in litigation matters about which there should be no dispute at trial (Spawton v Strates Shows, 75 Misc 2d 813; Nader v General Motors Corp., 53 Misc 2d 515, affd 29 AD2d 632). We find paragraphs 89 through 119, which concern ultimate conclusions of fact and law, to be inappropriate. Plaintiff may submit a new notice to admit containing demands which are within the scope and intendment of CPLR 3123. (Appeal from order of Supreme Court, Onondaga County, Murphy, J. — strike notice to admit.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Schnepp, JJ.