Miserendino, Krull & Foley v. Crump

—Judgment unanimously modified, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with memorandum. Denman, J., not participating. Memorandum: The defendant contends that it was an abuse of discretion for Special Term to refuse to accept an admittedly untimely response to a notice to admit duly served pursuant to CPLR 3123 (subd [a]). He also asserts that there are triable issues of fact which preclude the entry of summary judgment pursuant to CPLR 3212 (subd [b]). Special Term granted summary judgment on the three causes of action alleged…