Peri v. Inc. Village of East Rockaway , 486 N.Y.S.2d 702 ( 1985 )

In an action to recover damages for negligence, nuisance and trespass, plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Kutner, J.), entered October 13, 1983, which denied their motion for partial summary judgment against defendant Town of Hempstead on the issue of liability, inter alia, on the ground that its reply to their notice to admit was inadequate, and (2) as limited by their brief, from so much of an order of the same court, dated November 8, 1983, as, upon reargument, adhered to its original determination.

Appeal from the order dated October 13,1983, dismissed. That order was superseded by the order dated November 8, 1983, made upon reargument.

Order dated November 8, 1983 modified, by adding a provision to the order dated October 13, 1983 striking the reply to plaintiffs’ notice to admit as inadequate, with leave to file a new reply. As so modified, order affirmed, insofar as appealed from. Defendant Town of Hempstead’s time to file the new reply is extended until 10 days after service upon it of a copy of the order to be made hereon, with notice of entry.

Plaintiffs are awarded one bill of costs.

Defendant Town of Hempstead’s reply to plaintiff’s notice to admit was unsigned and unsworn. Therefore, the town is granted leave to file a proper reply (Bardo v Monroe County Water Auth., 37 Misc 2d 638). However, there are issues of fact precluding granting partial summary judgment against defendant Town of Hempstead (E. B. Metal & Rubber Indus. v County of Washington, 102 AD2d 599). Gibbons, J. P., Thompson, Weinstein and Brown, JJ., concur.