Don't Admit That! Notice To Admit Cannot Include Ultimate Issue in Case (NY)
July 11, 2013
Parties often utilize a Notice to Admit in anticipation of trial, in order to stipulate to agreed upon issues, thereby saving time, expense and needless disputes prior to and during trial. However, if an issue is not necessarily "agreed upon," then a Notice to Admit is, technically, an inappropriate device.
In <em><a href="http://pdf.wcmlaw.com/pdf/Ramcharran.pdf">Ramcharran v. Airport Services New York , LLC</a>,</em> a plaintiff asked the Court to deem, via Notice to Admit, that on the date of loss, "the motor vehicle owned and operated by the defendants was in contact with the plaintiff." Plaintiff served this Notice pre-discovery, and defendants clearly had objections to that unconfirmed admission. After moving for a protective order as per the CPLR, Judge Hart in Queens Supreme Court denied defendant's motion.
The Second Department reversed, citing both the inappropriate use of the protective order, and more importantly to attorneys, the defendants' timely objection thereto via CPLR 3103 motion. The lesson here is that the defendant's motion for a protective order was timely - had counsel waited several months to so move, it is unclear when the Second Department would have been as receptive.
As an aside, attorneys should always read Notices to Admit carefully, as they may contain one prejudicial admission buried within several innocuous admissions, in an effort to "sneak a fastball past" opposing counsel. While such a tactic could be considered unfair dealing, it's always better to spot such dealing earlier than later.
Special thanks to Brian Gibbons for his contribution.
For more information contact Denise Fontana Ricci at <a href="mailto:firstname.lastname@example.org">email@example.com</a>.