In New York practice, there are many devices available to the parties for obtaining information as part of the discovery (in NY, “disclosure”) phase of civil litigation.
These include Interrogatories, Demands for Documents and Things, Depositions, and (as will be discussed here) Requests for Admissions.
New York Civil Practice Law and Rules (CPLR) 3123 provides:[1]In federal practice, Requests for Admission are governed by Federal Rule of Civil Procedure 36.
(a) Notice to admit; admission unless denied or denial excused. At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry. Copies of the papers, documents or photographs shall be served with the request unless copies have already been furnished. Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. If the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation, or if the matters constitute a trade secret or such party would be privileged or disqualified from testifying as a witness concerning them, such party may, in lieu of a denial or statement, serve a sworn statement setting forth in detail his claim and, if the claim is that the matters cannot be fairly admitted without some material qualification or explanation, admitting the matters with such qualification or explanation.
(b) Effect of admission. Any admission made, or deemed to be made, by a party pursuant to a request made under this rule is for the purpose of the pending action only and does not constitute an admission by him for any other purpose nor may it be used against him in any other proceeding; and the court, at any time, may allow a party to amend or withdraw any admission on such terms as may be just. Any admission shall be subject to all pertinent objections to admissibility which may be interposed at the trial.
(c) Penalty for unreasonable denial. If a party, after being served with a request under subdivision (a) does not admit and if the party requesting the admission thereafter proves the genuineness of any such paper or document, or the correctness or fairness of representation of any such photograph, or the truth of any such matter of fact, he may move at or immediately following the trial for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. Unless the court finds that there were good reasons for the denial or the refusal otherwise to admit or that the admissions sought were of no substantial importance, the order shall be made irrespective of the result of the action. Upon a trial by jury, the motion for such an order shall be determined by the court outside the presence of the jury.
CPLR 3123.
Since “[t]he underlying purpose of the notice to admit is to eliminate from contention factual matters that are easily provable and about which there can be no controversy to expedite the trial by eliminating as issues that as to which there should be no dispute” and “[b]ecause it is aimed at identifying and establishing for the purposes of an action clear-cut matters of fact as to which the requesting party reasonably believes there can be no dispute or controversy, the notice to admit may not be used to request admission of ‘ultimate conclusions’ that can only be made after trial or information of a technical, detailed or scientific nature.” Smith v Brown, 61 Misc. 3d 681, 84 N.Y.S.3d 751, 2018 N.Y. Slip Op. 28299, 2018 WL 4656441 (N.Y. Sup. Ct., Bronx Cty., Sep. 27, 2018) (internal citations, quotation marks, and brackets omitted).
For example, in the Smith case, a personal injury action arising from a motor vehicle accident, the defendant served on plaintiff a notice to admit as to
(1) whether plaintiff owns and maintains an Instagram account with a specific “handle”; (2) whether the account associated with that handle was changed from a public to private account setting after a specific date; (3) whether plaintiff was depicted in a number of specified photographs — obtained from the Instagram account — and whether those photographs were taken after the accident;1and (4) whether plaintiff was depicted in a specified video — obtained from the Instagram account — and whether that video was taken after the accident.
Smith, 61 Misc.3d at 682-83. The court held that these items were properly the subject of a notice to admit – insofar as they are “uncontroversial, clear-cut matters of fact that are within plaintiff’s knowledge” – and thus denied plaintiff’s motion for a protective order vacating or striking the notice to admit Id. at 685 (internal quotation marks omitted).
| ↩1 | In federal practice, Requests for Admission are governed by Federal Rule of Civil Procedure 36. |
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