Bondy & Schloss v Strategic Dev. Partners LLC, 2011 NY Slip Op 02143 [82 AD3d 615]

March 24, 2011

Appellate Division, First Department

— [*1]

Davidoff Malito & Hutcher LLP, New York (Larry Hutcher of counsel), for appellants.

Hodgson Ross LLP, New York, (S. Robert Schrager of counsel), for respondents.

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered April 6, 2010, awarding plaintiffs damages, and bringing up for review, an order, same court and Justice, entered March 29, 2010, which, inter alia, granted plaintiffs’ motion for partial summary judgment, unanimously reversed, on the law, without costs, the judgment vacated, the motion denied and the matter remanded for further proceedings.

The court erred in granting plaintiffs partial summary judgment based solely on its finding that a notation on a document created by defendants but consisting of information supplied entirely by plaintiffs constituted an admission by defendants. It is clear from the face of the document that defendants did not “manifest[ ] an adoption or belief ” in the truth of its contents and, as such, the notation cannot constitute an admission ( Addo v Melnick , 61 AD3d 453 , 454 [2009]).

In any event, even if an admission, it was an extra-judicial admission, which is not conclusive and its probative value is an issue of fact for the jury ( see Matter of Rhodes [Motor Veh. Acc. Indem. Corp.—Biggs] , 203 AD2d 46, 47 [1994]; see also Gangi v Fradus. , 227 NY 452, 456 [1920]. Concur—Mazzarelli, J.P., Saxe, Friedman, Acosta and Freedman, JJ..