Riсhard S. Blumenfeld and Intersouth Properties, Inc. (collecj tively “Intersouth”) appeal from the grant of summary judgment tq
The record shows that the Exchange filed suit against Intersouth Proрerties, Inc., as the debtor, and Richard S. Blumenfeld, as guarantor, on January 22, 1990, and service of the summons, complaint, and attached interrogatories, requests for production of documents, and requests for admissions directed to both defendants, was perfected on both defendants on February 2, 1990. Although the defendants filed a joint answer on March 1, 1990, denying liability, neither defendant timely filed any response to any of the discovery.
On Junе 8, 1990, the Exchange filed a motion for summary judgment which was supported by the requests for admission which were admitted by operation оf law. On June 21, 1990, without first seeking authority to withdraw its admissions, Intersouth attempted to file a response to the Exchange’s requests for admissions. On July 10, 1990, Intersouth filed a request for oral argument and response to the Exchange’s motion for summary judgment, and on July 18,1990, filed its motion to withdraw admissions. Then, on July 25, 1990, Intersouth filed the affidavit of Richard S. Blumenfeld in opposition to the Exchange’s motion for summary judgment
After a hearing оn the motion for summary judgment on July 26, 1990, on September 7, 1990, without specifically ruling on Inter-south’s motion to withdraw admissions, the trial court granted the Exchange’s motion for summary judgment. This appeal followed. Held:
1. Intersouth alleges the .trial court erred by denying its motion to withdraw admissions because the Exchange failed to prove it would be prejudiced if the admissions were allowed to be withdrawn. We disаgree. Although the record does not show evidence that the Exchange would be prejudiced if the admissions were withdrawn, under the record of this appeal, that absence is not significant. In
Whitemarsh Contractors v. Wells,
The first prong of the test is not perfunctorily satisfied. The burden on the movant is tо show the presentation of the merits will be
If the burden of proof on the subject matter of the request for admission is on the requestor, the movant is required to show the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay.
If the movant satisfies the court on the first prong, the burden is on the respondent to satisfy the second prong. Id.
Examination of the record shows that Intersouth failed to satisfy the first prong of the test. Intersouth’s motiоn to withdraw its admission only gave its explanation for not responding to the request that it was “due to oversight of counsel since thе answer was prepared at the last minute.” Proceeding on the erroneous theory that the motion to withdraw must be granted unlеss the Exchange proved prejudice, Intersouth failed to make the showing required by the first prong of the test. Further, the affidavit of Richard S. Blumenfeld submitted in response to the motion for summary judgment also was not sufficient to satisfy the first prong of the test since the affidаvit does not address specifically the items in the request for admissions and does not establish that the “denial of the request can be proved by admissible evidence having a modicum of credibility, and . . . the denial is not offered solely for purpose of dеlay.” Cielock, supra at 813. Moreover, the statements in Blumenfeld’s affidavit do not address the request for admission directed only to Intersouth. Therefore, the burden on the second prong of the test never arose because Intersouth did not satisfy the first prong of the tеst. Accordingly, the trial court did not err by denying Intersouth’s motion.
2. Intersouth also argues that the trial court erred by granting |H summary judgment to the Exchange because Blumenfeld’s affidavit IB and the admissions which should have been withdrawn showed there III was a genuine issue of material fact for trial. In view of the disposi-lffl tion in Division 1, any reliance on the withdrawn admissions is mis-lffl placed. Further, we find that the admitted requests for admission offlflfl fact were sufficient to entitle the Exchange to the grant of summaryjffl judgment unless Intersouth met its burden as the respondent to аHH motion for summary judgment. Hfll
We find that the trial court correctly determined that Blumen-IM feld’s affidavit was insufficient for that purpose. Although thе affida-lffl
Accordingly, the trial court did not err by granting summary judgment to the Exchange.
Judgment affirmed.