Commercial Division Blog

Posted: May 4, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Category Discovery/Disclosure

Notice to Admit Seeking Admissions Concerning Fundamental Matters That Do Not Dispose of Uncontroverted Questions of Fact Improper

On April 21, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Chen Dongwu v. New York City Regional Center LLC, 2022 N.Y. Slip Op. 50322(U), holding that a notice to admit that seeks admissions concerning "fundamental matters" that do not "dispose of uncontroverted questions of fact" was improper, explaining:

A notice to admit is to be used only for disposing of uncontroverted questions of fact or those [*2] that are easily provable (CPLR 3123; Hodes v City of New York, 165 AD2d 168, 170, 566 N.Y.S.2d 611 [1st Dept 1991]). Its use "is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial" (DeSilva v Rosenberg, 236 AD2d 508, 509, 654 N.Y.S.2d 30 [2d Dept 1997]) or to obtain "admissions to facts that [go] to the heart of the matter'"; Morreale v Serrano, 67 AD3d 655, 655, 886 N.Y.S.2d 910 [2d Dept 2009], quoting Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d 537, 537, 844 N.Y.S.2d 718 [2d Dept 2007]).

Contrary to the defendants' assertions, defendants' first set of requests for admissions dated October 5, 2020, seek admissions regarding disputed facts. The bulk of the request seeks admissions relevant to whether the plaintiffs fully appreciated the scope and form of their submitted I-526 and I-829 applications in addition to any investment paperwork that accompanied it. The plaintiffs understanding of the EB-5 investment, their representation, communications and actions undertaken in support of their I-526 and I-829 applications are not matters where "there can be no substantial dispute at trial" (CPLR 3123[a]; see Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 453, 625 N.Y.S.2d 202 [1st Dept 1995]).

The Court also finds the defendants' request for an admission as to the plaintiffs' "sophistication" as an investor, and the requests seeking admissions regarding plaintiffs' net worth and personal investment values to be inappropriate and not a line of inquiry proper for a request for admission (DeSilva, 236 AD2d at 509).

Since here, the bulk of the requests seek [*3] admissions regarding fundamental matters and do not dispose of uncontroverted questions of fact, the Court finds that those requests are improper (CPLR 3123; Washington v. Alco Auto Sales, 199 AD2d 165, 605 N.Y.S.2d 271 [1st Dept 1993]; Hodes v. City of New York, 165 AD2d 168, 566 N.Y.S.2d 611; Miller v. Hilman Kelly Co., 177 AD2d 1036, 578 N.Y.S.2d 319).

However, the Court finds that the requests that seek to authenticate the plaintiffs' signature on documentation submitted by the plaintiffs in support of their I-526 and I-829 paperwork, and requests as to residency and the status and/or acceptance of the I-526 and I-829 applications are proper.

A notice to admit is a device in which one party asks another to admit certain facts. But as this decision shows, a notice to admit can be used only for certain types of facts. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions about notices to admit.