CPLR § 3123(a) Calling Something a Notice to Admit Does Not Make it One

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

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

(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] ).

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.

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