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Posted: December 9, 2015

Notice to Admit Seeking Admissions That Contravene Complaint’s Allegations Improper

On December 2, 2015, the Second Department issued a decision in 32nd Ave. LLC v. Angelo Holding Corp., 2015 NY Slip Op. 08824, holding that a party had no obligation to respond to notices to admit that addressed disputed issues.

In 32nd Ave. LLC , the trial court “determined that the items set forth in a notice to admit served upon i[the plaintiff] by the third-party defendant were deemed admitted pursuant to CPLR 3123(a) based on its failure to respond thereto.” The Second Department reversed the trial court, explaining:

CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted. However, the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of. A notice to admit is not to be employed to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts.

Here, as the plaintiff correctly contends, item Nos. 1 through 5 and 8 through 26 of the notice to admit improperly sought concessions that went to the essence of the controversy between the parties and involved matters that clearly were in contravention of the allegations of the complaint. Thus, the third-party defendant could not have reasonably believed that the admissions he sought were not in substantial dispute, and those items were palpably improper. Accordingly, the plaintiff was not obligated to respond to them.

(Internal quotations and citations omitted) (emphasis added). The better course would have been for the plaintiff timely to object to the notices to admit as improper rather than take the risk it did here.

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