Orellana v. City of New York

Apr 25, 1994
Versions:203 A.D.2d 542
612 N.Y.S.2d 943
1994 N.Y. App. Div. LEXIS 4322

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated July 16, 1992, as denied their motion to restore the action to the trial calendar.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs failed to offer any evidence in support of their motion to restore the action to the trial calendar beyond their unsupported allegations that the City was on notice concerning the allegedly defective sidewalk. Therefore, the trial court did not improvidently exercise its discretion in denying their motion.

Because the plaintiffs’ notice to admit sought the admission *543of contested ultimate issues and not clear-cut matters of fact about which there could be no reasonable dispute, it was palpably improper and the City was under no obligation to respond (see, Miller v Hilman Kelly Co., 177 AD2d 1036; see also, Howlan v Rosol, 139 AD2d 799, citing Marguess v City of New York, 30 AD2d 782, affd 28 NY2d 527). Bracken, J. P., Miller, Copertino, Santucci and Altman, JJ., concur.