The defendants brought a motion to dismiss the plaintiff's action as statute-barred, relying on deemed admissions resulting from the plaintiff's failure to respond to a Request to Admit.
The plaintiff argued the failure was due to counsel's inadvertence and sought to withdraw the deemed admissions.
Applying the test from Antipas v. Coroneos, the court found the proposed response raised a triable issue regarding discoverability, the failure to respond was inadvertent, and the withdrawal could be compensated in costs.
The defendants' motion was dismissed, and the plaintiff was permitted to serve the response.
