CPLR § 3123 (NTA)

Easy to ignore and easy to screw up.  Do either and the consequences can be surprising and severe.  This is a big deal.

CPLR § 3123 Admissions as to matters
of fact, papers, documents and photographs

New Image Constr., Inc. v TDR Enters. Inc., 2010 NY Slip Op 05681 (App. Div., 1st, 2010)

Plaintiff, a contractor, brought this action to recover money due for
the build out of a restaurant pursuant to a contract entered into by
TDR and Green. In support of its motion, plaintiff submitted two notices
to admit the genuineness of documents and a notice to admit purported
facts. Although served with the notices to admit, defendants did not
respond to any of them. Among the documents covered by the first two
notices to admit was a June 2006 construction agreement executed by
plaintiff, and by Green, individually and on behalf of TDR. The
agreement provided for the payment of $200,000 for plaintiff's work.
Payments were to be made in five equal installments of $40,000 beginning
on the signing of the contract. The agreement set forth in detail the
scope of the work, and required that any changes to the agreement be in

Other documents covered by the notices to admit reflected a loan
to defendants by PNC Bank, for the payment of plaintiff's fee, among
other things. These documents show defendants' representation to the
bank that plaintiff had completed its work, a requirement for the
disbursement of the loan funds. The documents also included cancelled
checks made payable to plaintiff that were apparently endorsed and
cashed by defendants instead. Defendants are deemed to have admitted the
genuineness of the said documents because they did not timely respond
to plaintiff's notice (see CPLR 3123
; Kowalski v Knox, 293
AD2d 892 [2002]). Hence, plaintiff's prima facie entitlement to
judgment as a matter of law is established. We note, however, that
plaintiff's third notice to admit was improper, since it impermissibly
"compell[ed] admission of fundamental and material issues or ultimate
facts that can only be resolved after a full trial"
(Hawthorne Group v RRE Ventures, 7 AD3d 320,
324 [2004]).

Since defendants are deemed to have admitted the genuineness of
the construction [*2]agreement, their
attempts to disaffirm it are unavailing.
We also reject defendants'
claim that they terminated the contract due to plaintiff's failure to
diligently complete the work. Defendants do not claim to have served
plaintiff with a 14-day notice to cure and written notice of termination
which were contractual prerequisites to termination. Defendants'
purported termination of the contract was, therefore, ineffective (see
e.g. MCK Bldg. Assoc. v St. Lawrence Univ.
, 301 AD2d 726, 728
[2003], lv dismissed 99 NY2d 651 [2003]). The court properly
denied the motion for summary judgment as against defendant Terrance
Davis as it has not been shown that he dealt with plaintiff in an
individual capacity (see Kibler v Gilliard Constr., Inc., 53 AD3d 1040,
1042 [2008]).

The bold is mine.

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