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THE NOTICE TO ADMIT SOUGHT CONCESSIONS THAT WENT TO THE ESSENCE OF THE CONTROVERSY AND THEREFORE WAS PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice to admit in this breach of contract action was palpably improper:

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 fact … .

… [T]he notice to admit at issue sought concessions that go to the essence of the controversy … . Thus, the … defendants could not have reasonably believed that the admissions they sought were not in substantial dispute … , and the notice to admit was palpably improper … . Moreover, the information sought in the notice to admit may be obtained through discovery, including depositions … . American Bldrs. & Contrs. Supply Co., Inc. v Vinyl is Final, Inc., 2023 NY Slip Op 06346, Second Dept 12-13-24

Practice Point: A notice to admit which seeks concessions at the heart of the controversy is palpably improper and should be struck.

 

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