Reversing Supreme Court, the Second Department determined defendant’s notice to admit sought concessions that went to the heart of the controversy which should not have been deemed admitted:
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, … 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 … . The Supreme Court therefore erred in deeming those items admitted by reason of the plaintiff’s failure to respond to the notice. Since those items should not have been deemed admitted, the plaintiff’s motion pursuant to CPLR 3123(b) to withdraw those deemed admissions was unnecessary. 32nd Ave. LLC v Angelo Holding Corp., 2015 NY Slip Op 08824, 2nd Dept 12-2-15
CIVIL PROCEDURE (NOTICE TO ADMIT IMPROPERLY USED)/NOTICE TO ADMIT (IMPROPERLY USED)