In a negligence action to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Westchester County, entered June 14, 1974, which (1) granted defendant’s motion for a protective order as to plaintiffs’ notice to admit and (2) denied plaintiffs’ cross motion for a pretrial examination of an employee of defendant. Order modified by striking so much thereof as granted defendant’s motion and substituting therefor a position denying said motion. As so modified, order affirmed, with $20 costs and disbursements .to appellants. While a protective order may be utilized to test the legitimacy of. a notice to admit pursuant to CPLR 3123 (see Epstein v. Oonsolidated Edison Go. of N. T., 31 A D 2d 746; Nader v. General Motors Corp., 53 Mise 2d 515, affd. 29 A D 2d 632), we believe that. it was an improvident exercise of discretion under the circumstances herein to grant defendant’s motion. If defendant cannot truthfully admit or deny the matter requested in the notice to admit, he may set forth his reasons in a sworn statement (CPLR 3123, subd. [a]), Hopkins, Acting P. J., Martuscello, Brennan and Benjamin, JJ., concur; Shapiro, J., concurs, with the following further memorandum: I fully concur in the above memorandum and I write only to point out that I have receded from the position I took in Schwartz v. Macrose
*627Lbr. & Trim Co. (46 Misc 2d 202) that a notice to admit cannot be attacked prior to trial.