Commercial Division Blog

Posted: September 17, 2020 / Categories Commercial, Discovery/Disclosure

Party's Failure to Respond to Motion to Admit Excused When Questions Went to Disputed Issues

On August 28, 2020, Justice Masley of the New York County Commercial Division issued a decision in Sandler v. Independent Living Aids LLC, 2020 NY Slip Op. 32879(U), excusing a party's failure to respond to a notice to admit when the questions went to disputed issues, explaining:

As a preliminary matter, the parties dispute whether defendants had an obligation to respond to the Revised Second Notice to Admit and whether the court should deem it admitted the facts as stated therein. Defendants' attorney states that, in connection with the resolution of related discovery disputes, plaintiffs' attorney verbally informed him that he would not require the Defendants to respond to Plaintiffs' Revised Second Notice to Admit. The parties did not confirm this in writing. In addition, defendants' attorney contends that the Revised Second Notice to Admit, like its predecessors, consisted of improper and vague questions which, in many instances, asked the Defendants to admit facts that were, in essence fundamental and material issues or contested ultimate facts, conclusions of law and/or which had and have been answered during in Defendants' responses to the 104 questions long First Notice to Admit, in depositions, in affidavits, in pleadings and in motion practice. Plaintiffs' attorney counters that he: (1) has no recollection of verbally withdrawing the Revised Second Notice to Admit; (2) doubts that he would ever do so without confirming it in writing; and (3) has no record of such a withdrawal.

CPLR 3123 requires a written response to a Notice to Admit within 20 days from service of such notice. Failure to respond results in each of the matters of which an admission is requested to be deemed admitted. However, the requested admissions must be as to matters that the requesting party reasonably believes there can be no substantial dispute about at the trial. The notice to admit is designed to remove from the case those uncontested matters which would merely present a time-consuming burden at trial. It cannot be utilized to seek admissions of material issues or ultimate or conclusory facts, interpretations of law, questions already admitted in responsive pleadings, or questions clearly irrelevant to the case.

Where the notice to admit improperly demands admission as to disputed matters, there is no obligation to furnish admissions in response.

Here, the Revised Second Notice to Admit contains 73 items. Some of the items appear appropriate, such as request as to the genuineness of papers or documents. However, it also contains patently improper requests for admission of fundamental and material issues or ultimate facts, such as the request for admission that the conveyance of all assets to ILA New York for $1 was not an arms-length transaction. Plaintiffs could not have reasonably believed that there was no substantial dispute regarding this issue. The Revised Second Notice to Admit contains numerous impermissible requests for admission that do not require a response, the court declines to deem as true the facts as stated in the Revised Second Notice to Admit.

(Internal quotations and citations omitted) (emphasis added).

A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called "discovery"). The scope of discovery in New York is broad, and includes the discovery device discussed here: notices to admit. As this decision shows, the use of notices to admit is limited in important ways. Contact Schlam Stone & Dolan partner John Lundin at if you or a client has a question regarding discovery obligations (and what to do if a litigant is not honoring those obligations).