CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs
CPLR § 3123(a)Notice to admit; admission unless denied or denial excused
Ross v Sherman, 2009 NY Slip Op 29148 (Sup. Ct. Orange County, 2009)
The threshold question, however, is whether the June 5, 2008 document bearing the caption of this action and which is entitled "Notice to Admit" constitutes a notice to admit under CPLR §3123 such that defendants' non-response to same within twenty days of service thereof constitutes an admission of "[e]ach of the matters of which an admission is requested" (id.). The Court concludes that it does not.
Although the June 5, 2008 document bears the caption of the action and has the words "Notice to Admit" underlined and typed in bold just above the index number which is located to the right of the caption, there is neither any reference to CPLR §3123 nor, for that matter, any other statutory authority. While such an omission would not, in and of itself be determinative of the issue, there are other factors which play a role in the Court's determination.
An examination of the introductory paragraph to the forty-eight enumerated statements to which admissions are allegedly sought reads as follows:
PLEASE TAKE NOTICE, that plaintiffs . . . hereby appear in the above entitled action, and that the undersigned has been retained as attorneys for said defendants and hereby waive[] service of all papers and of notices of all proceedings in the action except, all motions and court appearances, notice of sale and notice of proceedings to obtain surplus monies.
This language is in stark contrast to the introductory and instructional language that one might expect to find in a notice to admit, such as, for example:
PLEASE TAKE NOTICE that pursuant to CPLR § 3123, you are herebyrequested to furnish to the undersigned, within twenty (20) days after theservice of this notice, a written admission to the following facts:
(3 N.Y.Prac., Com. Litig. in New York State Courts § 25:19 [2d ed.]).The effect of "[a]ny admission made, or deemed to be made, by a party pursuant to a request made under this rule [CPLR §3123] is for the purpose of the pending action . . . only. . ." (CPLR §3123[b]). Nonetheless, the importance and potential consequences of such admissions cannot be ignored. For example, it is proper for the Court to take into account deemed admissions upon consideration of a motion for summary judgment (Miserendino, Krull & Foley v. Crump , 64 AD2d 842-843 [4th Dept., 1978] citing Carlson v. Travelers Ins. Co., 35 AD2d 351, 353 [2d Dept., 1970]; 3A Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3123.135), as is herein requested by plaintiffs. The depth of such admissions are equally consequential, going so far as to bind one even upon appeal (see, In re Cohn , 46 AD3d 680, 681 [2d Dept., 2007][facts set forth in five notices to admit to which party failed to respond are deemed true for the purpose of appeal]; see also, Carlson v. Travelers Ins. Co. , 35 AD2d 351 [2d Dept., 1970] ). [*3]
Given the potential and far-reaching consequences of a section 3123 deemed admission, the Court finds that any ambiguity in papers purporting to constitute a 3123 notice to admit must be construed against the drafter, here plaintiffs.
With that in mind and upon taking into account the absence of any reference to CPLR §3123, the lack of any written notice as to what the forwarding party is demanding of the recipient (see e.g. 3 N.Y.Prac., Com. Litig. in New York State Courts § 25:19 [2d ed.], supra), and upon consideration of the introductory language actually present therein, the Court concludes that the subject "Notice to Admit" does not constitute a notice to admit within the statutory meaning, spirit or intent of CPLR §3123. As such, no legal consequences flow under CPLR §3123 from defendants failure to have responded to same.
Since the absence of the desired deemed admissions are fatal to plaintiffs' motion for summary judgment, the motion is hereby denied.
For more information on the use of a Notice to Admit, check out the NYLJ article I co-authored with David M. Barshay, Esq: Use of Notice to Admit in No-Fault Insurance Litigation. I know, shameless self promotion. Even so, the Appellate Division referred to it in a decision and that's kind of a big deal. At least to me.
