Black Tie Optional: Formal and Informal Judicial Admissions

Zegarowicz v Ripatti, 2010 NY Slip Op 07163 (App. Div., 2nd 2010)

Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v 81 & 3 of Watertown, 288 AD2d 890, 891; Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655).

Here, HVT made a formal judicial admission that it was listed as owner on the certificate of title. A certificate of title is prima facie evidence of ownership (see Vehicle and Traffic Law § 2108[c]; Switzer v Aldrich, 307 NY 56; Corrigan v DiGuardia, 166 AD2d 408; Salisbury v Smith, 115 AD2d 840) and, thus, the Supreme Court erred in, upon reargument, adhering to its original determination [*3]granting the motion of the defendant HVT, Inc., pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it. Since this presumption of ownership is not conclusive, and may be rebutted by evidence which demonstrates that another individual owned the vehicle in question (see Aronov v Bruins Transp., 294 AD2d 523; Dorizas v Island Insulation Corp., 254 AD2d 246), the matter must be remitted to the Supreme Court, Westchester County, for a new trial on the issue of liability, a trial on the issue of damages, if warranted, and the entry of an appropriate amended judgment thereafter.

Roxborough Apts. Corp. v Kalish, 2010 NY Slip Op 20402 (App. Term. 1st 2010)

Statements made in a pleading verified by a person with personal knowledge of the content of the statements are formal judicial admissions, which dispense with the production of evidence and concede, for the purposes of the litigation in which the pleading was prepared, the truth of the statements (see People v Brown, 98 NY2d 226, 232 n2 [2002]; see also CPLR 3020[a], 3023). However, statements made in a pleading "upon information and belief" do not [*2]constitute judicial admissions (see Empire Purveyors, Inc. v Weinberg, 66 AD3d 508 [2009]; Scolite Intern. Corp. v Vincent J. Smith, Inc., 68 AD2d 417 [1979];see also Rosar Realty Corp. v Leavin, 7 AD3d 295 [2004]; cf. Bogoni v Friedlander, 197 AD2d 281 [1994], lv denied 84 NY2d 803 [1994]; Hirsch, Inc. v Town of N. Hempstead, 177 AD2d 683 [1997]; but see Ficus Investments, Inc. v Private Capital Mgt., LLC, 61 AD3d 1 [2009]).

Here, the statements in the underlying holdover petition were verified by landlord's attorney upon information and belief. Therefore, those statements do not constitute formal judicial admissions (cf. Riverside Syndicate, Inc. v Richter, 26 Misc 3d 137[A], 2010 NY Slip Op 50183[U] [2010]; East Egg Assoc. v Diraffaele, 158 Misc 2d 364 [1993], affd 160 Misc 2d 667 [1994]). Moreover, none of the other documents submitted by tenants on their motion contain formal judicial admissions by landlord regarding the existence of a lease containing an attorneys' fees provision. We note in this connection that many of the documents were generated in other judicial proceedings and would constitute, at most, informal judicial admissions, which do not conclusively bind landlord (see Matter of Liquidation of Union Indem. Ins. Co. of New York, 89 NY2d 94 [1996]; Baje Realty Corp. v Cutler, 32 AD3d 307 [2006]).

The bold is mine.

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