NY Practice Tip: Protecting Your Client Against an Improper Notice to Admit
March 12, 2021
The CPLR 3123 notice to admit can be a useful device in litigation. Its primary purpose is to expedite a trial by eliminating the necessity of proving a readily admittible fact or matter not in dispute. But, as efficient as it sounds, the notice to admit is a limited device, and may only be used to elicit an admission of a fact which the seeking party “reasonably believes there can be no substantial dispute” – i.e., an easily provable, clear-cut matter of fact.
Despite this exacting standard, many litigants often find themselves on the receiving end of an improper notice to admit – that is, one that seeks to compel the admission of a fundamental or material fact in dispute. It is risky to deny outright the matters in the notice, since the requesting party may be able to recover the costs (and attorneys’ fees) associated with proving the matter at trial (if the denial is found to be unreasonable). Ignoring the notice entirely is even riskier. Although the court may ultimately find the notice so unreasonable that the ignoring party will face no sanction, ignoring a notice to admit could be perilous, since “silence is deemed an admission” (CPLR 3123[a]). So, if you are the recipient of an improper notice to admit, what should you do?
As Prof. Patrick Connors aptly states in the Practice Commentaries to CPLR 3123, “the wisest course” is to move for a protective order pursuant to CPLR 3103.
The New York County Commercial Division recently illustrated how a protective order may relieve a litigant from responding to an improper notice to admit. In 470 4th Ave. Fee Owner, LLC v Adam Am. LLC (70 Misc 3d 1214[A], 2021 NY Slip Op 50090[U] [Sup Ct, NY County Feb. 4, 2021]), the defendants, Adam America LLC, 470 4th Avenue Investors, LLC, and Danya Cebus Construction, LLC (“Defendants”), served notices to admit on third-party defendants All About AC Corp. (“AC”) and Amra Electrical Corporation (“Amra”) (“3P Defendants”). The 9-page notice to admit served on AC contained 38 separate matters for which Defendants sought admission. Rather than respond to the notices, the 3P Defendants timely moved, pursuant to CPLR 3103, for protective orders relieving them from responding to the notices to admit.
Justice Robert R. Reed – a fairly recent addition to Manhattan’s Commercial Division – partially granted the motion. Of the 38 matters contained in the notice served on AC, the Court found that only the first four requests – which sought admissions as to the existence and authenticity of the contract between AC and Danya – were proper. This is consistent with the plain language of CPLR 3123, which permits requests for admission concerning “the genuineness of any papers or documents.”
As to the remaining 34 matters, the Court concluded they sought “admissions that go to the heart of the parties’ claims and defenses,” and were therefore improper. Indeed, the central claim in the litigation concerned water intrusion and damages as a result of allegedly improperly installed packaged terminal air conditioner units. AC denied it was responsible for the allegedly defective installation. Nevertheless, the requests sought admissions from AC concerning the scope of AC’s work and AC’s understanding of its contractual obligations in connection with the project. For example, one request sought an admission that “[p]ursuant to the Contract, it was [AC’s] responsibility to provide a complete, operational and approved HVAC system.” And so, because the requests sought admissions from AC concerning disputed issues of fact in the litigation – namely, the scope of AC’s work at the project – a protective order was warranted.
Although some early cases denied the use of the protective orders to vacate or limit a notice to admit (Schwartz v Macrose Lumber & Trim Co., 46 Misc 2d 202 [Sup Ct, Queens County 1965]), protective orders are now commonly accepted devices for testing the validity of a notice to admit. Thus, a party may seek a protective order if the notice to admit requests admissions beyond the scope of CPLR 3123 (see e.g. Sagiv v Gamache, 26 AD3d 368 [2d Dept 2006]), such as where the notice seeks admissions on material issues in dispute in the action.
Courts in New York have also held that a protective order may be available where the notice to admit seeks to secure legal conclusions (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453 [1st Dept 1995]), or “highly technical, detailed and scientific information which is the subject for examination by an expert witness” (Berg v Flower Fifth Ave. Hospital, 102 AD2d 706 [1st Dept 1984]). And, Courts have granted protective orders where the information sought in the notice to admit may be obtained through document discovery (Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 [2d Dept 2013]), or where the notice to admit is used to exact an admission from one party of “facts within the unique knowledge of other parties to the action” (Taylor v. Blair, 116 AD2d 204 [1st Dep’t 1986]).
A notice of admit should be used only for disposing of uncontroverted questions of fact or those that are easily provable. Indeed, a notice that seeks to compel the admission of material facts in dispute, legal conclusions, technical, detailed, or scientific information, or information within the unique knowledge of a third-party, may be improper. But, no matter how unreasonable the notice of admit, a recipient who neither reasonably denies the matters nor promptly moves to test the validity of the notice is courting trouble. If the recipient ignores the notice based on a mistaken assumption that the court will ultimately find the notice unreasonable, she will be held to the usual rule that silence is an admission. And so, the safest course for a litigant on the receiving end of an unreasonable or improper notice to admit is to promptly move for a protective order.