The Appellate Division unanimously affirmed, with costs, the Order denying the parties' motions for summary judgment. The doctrine of collateral estoppel does not bar litigation of the issues decided in a Civil Court order and judgment entered in an earlier action between the parties since it was later vacated by the Appellate Term for lack of subject matter jurisdiction. Plaintiff failed to show prejudice arising from the motion court's acceptance of defendant's principal's corrected affidavit, originally submitted as an affirmation, pursuant to CPLR 2106. Nor can plaintiff rely on defendant's failure to respond to its notice to admit in support of its summary judgment motion because a notice to admit may not be used to request admission of material issues or ultimate or conclusory facts, or facts within the unique knowledge of other parties. Rather, a notice to admit is only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy. Based on these principles, plaintiff's motion was properly denied.
Utopia Heart Care, P.L.L.C. v. Gramercy Cardiac Diagnostic Servs., P.C., NY Slip Op 01373 (1st Dep't March 9, 2021)
