Orkin v. Sufrin

GRIM, District Judge. Defendant has moved for summary judgment in his favor, having averred in his answer to the Complaint that he was not the operator of the motor vehicle involved in the case and that the operator was not his agent. Defendant filed a “Request for Admission under Rule 36” asking plaintiff to admit that certain statements are true: (1) “On the date and at the time and place set forth in plaintiff’s complaint, defendant’s vehicle was operated by a third person not a party to this action,” and (2) “No allegation of agency is made by plaintiff as to said defendant.” Plaintiff has not answered this. Request for Admission although it was filed on July 18, 1962, with this endorsement on the back: “You are hereby notified to plead to the enclosed Request within ten (10) days from service hereof.” The Request for Admission was served immediately, but no answer thereto or other reply thereto has been filed.' Since no answer or reply has been filed to the Request for Admission each of the matters included in the Request for Admission must be deemed to be admitted, Rules of Civil Procedure, rule 36(a). Therefore, it must be taken as admitted that the motor vehicle which caused the injuries in the present case was operated by a third person, not a party to the action, and that the operator was not an agent of the defendant. In view of this, defendant’s motion for summary judgment must be and will be granted.