Washington v. Alco Auto Sales

Order, Supreme Court, New York County (Charles Ramos, J.), entered on or about June 8, 1992, which granted Motor Vehicle Accident Indemnification Corporation’s motion for a protective order against plaintiffs’ notice to admit, and denied plaintiffs’ cross motion pursuant to CPLR 3126 to strike defendants’ answers, unanimously affirmed, with costs. In furtherance of the policy favoring the resolution of actions on the merits, it is well settled that the harsh remedy of striking a pleading should not be employed without a clear showing of a deliberate and willful refusal to disclose (Cruzatti v St. Mary’s Hosp., 193 AD2d 579). No such showing was made here with respect to the failure to implement the preliminary conference order. Plaintiffs’ notices to admit, which for the most part repeated the allegations of the complaint, improperly demanded that defendants concede many matters that are in dispute or clearly denied. A notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable (CPLR 3123; Hodes v City of New York, 165 AD2d 168), and is certainly not intended as a means of compelling an opposing party to admit to the most fundamental and material of the contested issues of fact, as plaintiffs appear to be endeavoring to do (Miller v Hilman Kelly Co., 177 AD2d 1036). Concur—Carro, J. P., Rosenberger, Kassal and Rubin, JJ.