SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
January 13, 1969
MAXINE EPSTEIN ET AL., RESPONDENTS,
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., APPELLANT, ET AL., DEFENDANTS
Appeal by defendant Consolidated Edison Company of New York, Inc. from an order of the Supreme Court, Kings County, dated March 27, 1968, which denied its motion to strike plaintiffs' notice to admit, without prejudice to a motion for such relief at the trial of the action.
Beldock, P. J., Christ, Brennan, Benjamin and Martuscello, JJ., concur.
In our opinion this was error and Special Term now has the power to make that determination before the trial (CPLR 3103; Nader v. General Motors Corp., 53 Misc. 2d 515, affd. 29 A.D.2d 632). We see no merit in appellant's contention that the notice to admit was untimely.
Order reversed, on the law and the facts, without costs, and motion remitted to Special Term for a determination as to the propriety of the items in the notice to admit. The motion was denied by the learned Special Term on the ground that a decision as to the reasonableness of the demands in a notice to admit may not be made by Special Term, in advance of trial, but must instead be left to the trial court.
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