3123

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

Saline v Saline, 2012 NY Slip Op 03162 (2nd Dept., 2012)

Contrary to the defendant's contentions, the trial court properly admitted into evidence certain documents admitted by him to be authentic and upon which it based its findings of fact (see CPLR 3123; Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103; Ocampo v Pagan, 68 AD3d 1077).

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
writing.

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.

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
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.

CPLR § 3123(a)

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

CPLR § 3123(a)Notice to admit; admission unless denied or denial excused

Wagner v 119 Metro, LLC, 2009 NY Slip Op 01109 (App. Div., 2nd 2009)

After a dispute arose over the plaintiffs' entitlement to the escrow
funds, the plaintiffs commenced this action and, after joinder of
issue, served discovery demands in January 2004 to which the defendants
never responded. Nor did the defendants appear for scheduled
depositions. Pursuant to a compliance conference order, the [*2]plaintiffs
filed a note of issue and certificate of readiness on January 25, 2007.
Six weeks later, on March 6, 2007, the plaintiffs served the defendants
a notice to admit to which were appended 39 documents. The defendants
neither responded nor sought a protective order.
On October 15, 2007,
which was shortly before the trial, the defendants retained new
counsel. One week later, on the first day of the trial, the plaintiffs
moved in limine to preclude the defendants from testifying at trial and
presenting any evidence at trial based on their failure to provide any
discovery during the litigation. The defendants opposed, asserting that
their failure to provide discovery had not been willful, but resulted
from their prior counsel's failure to communicate with them, which led
them to mistakenly believe that the plaintiffs had abandoned the
matter. The trial court granted the motion to the extent of precluding
the defendants from testifying at trial. At the nonjury trial, the only
evidence consisted of the pleadings and the 39 documents appended to
the notice to admit.
Neither party presented any witnesses. At the
conclusion of the trial, the court found that the plaintiffs either
substantially performed their obligations under the escrow agreement by
correcting the violations or were prevented from doing so by the
defendants' actions and/or inactions, and accordingly, the defendants
had breached the escrow agreement by failing to remit to the plaintiffs
the sum of $24,000 held in the escrow account. A judgment thereafter
was entered against the defendants in the principal sum of $24,000,
from which the defendants appeal. We reverse.

The Supreme Court improvidently exercised its discretion in
granting the plaintiffs' motion in limine to the extent of precluding
the defendants from testifying at trial, as there was no showing that
the defendants' failure to provide discovery was willful and
contumacious (see CPLR 3126; cf. Klutchko v Baron, 1 AD3d 400, 404; Goens v Vogelstein, 146 AD2d 606; Tine v Courtview Owners Corp., 40
AD3d 966). Instead, the defendants' submission in opposition to the
motion demonstrated the reasonableness of their excuse that the law
office failure of their prior counsel explained their failure to
provide discovery (see Hageman v Home Depot U.S.A., Inc., 25 AD3d 760; Halikiopoulos v New York Hosp. Med. Ctr. of Queens, 284 AD2d 373).

Based on the defendants' concession that they never responded to
the plaintiffs' notice to admit, the trial court did not err in deeming
the defendants to have admitted the genuineness of 39 documents
appended to the plaintiffs' notice to admit (see CPLR 3123[a]).

Moreover, "[w]here, as here, a nonjury trial is involved, this Court's
power to review the evidence is as broad as that of the trial court" (Totonelly v Enos, 49 AD3d 710, 711; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60
NY2d 492, 499). Since the trial court heard no testimony, under the
circumstances, there is no issue with respect to witness credibility (cf. Totonelly v Enos, 49
AD3d at 711). The plaintiffs did not establish the defendants' breach
of the escrow agreement or the plaintiffs' performance of their
obligations thereunder.

In light of the trial court's error in granting the plaintiffs'
in limine motion to preclude the defendants from testifying, and given
that the trial evidence did not support the trial court's finding that
the plaintiffs substantially performed their obligations under the
escrow agreement or were prevented from doing so by the defendants, or
that the defendants breached the escrow agreement, we reverse the
judgment. Although the evidence submitted by the plaintiffs at trial
failed to establish a prima facie case on their breach of contract
causes of action, because discovery was never completed we must remit
the matter to the Supreme Court, Queens County, for completion of
discovery and, thereafter for a new trial.

The bold is mine.

CPLR § 5511; § 3123

CPLR § 5511 Permissible appellant and respondent

CPLR § 3213 Motion for summary judgment in lieu of complaint

D'Agostino Law Off., P.C. v Parlante, 2009 NY Slip Op 00331 (App. Div., 2nd)

The defendants failed to submit papers in opposition to the plaintiff's
motion for summary judgment in lieu of complaint within the time
provided in the notice of motion (see CPLR 3213), and the
plaintiff's motion for summary judgment in lieu of complaint was
granted on default. No appeal lies from an order or judgment granted
upon the default of the appealing party
(see CPLR 5511; Sanchez v Village of Ossining, 271 AD2d 674; Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co.,
117 AD2d 588). Since the judgment was entered pursuant to an order
granting the plaintiff's motion for summary judgment upon the
defendants' default in appearing and opposing the motion, the appeal
must be dismissed (see Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588).

The bold is mine.