Danielle W. v. Jentsch & Co., Inc.

Summary

The New York Appellate Division, Fourth Department, affirmed summary judgment dismissing a personal-injury action arising from a child’s fall on a sidewalk. The court held that the plaintiff’s failure to respond to a notice to admit constituted a conclusive judicial admission identifying a different area of the sidewalk as the accident location, and the plaintiff had abandoned or failed to preserve arguments concerning that area. The court also held that the plaintiff was not aggrieved by dismissal of the third-party claims against the contractors.

Holdings

1. An admission obtained through a notice to admit is a formal judicial admission and is conclusive in the action when the responding party neither objects, seeks to amend or withdraw the admission, nor provides an adequate explanation for the failure to respond.
2. Because plaintiff's judicial admission identified a different sidewalk area as the location of the fall, and she failed to address the alleged dangerous condition in that area, she abandoned any contention that South Park's summary judgment was erroneous and could not prevail based on the excavated area.
3. Plaintiff could not challenge the dismissal of the third-party complaint against JEG and Kimil because she was not aggrieved by those portions of the order and judgment.

Questions Presented

1. Whether plaintiff's failure to respond to a notice to admit conclusively established the location of the alleged fall.
2. Whether plaintiff could rely on the excavated sidewalk area as the alleged dangerous condition after failing to respond to the notice to admit.
3. Whether plaintiff abandoned her challenge to South Park's summary judgment by failing to address the effect of the judicial admission in her main appellate brief.
4. Whether plaintiff could challenge summary judgment dismissing the third-party complaint against JEG and Kimil when she was not aggrieved by those portions of the order and judgment.

Disposition

affirmed