IMPROPER USE OF A NOTICE TO ADMIT

 

Civ. Prac. L. & R. § 3123(a) permits the service of a request for admission "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 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."

 

The Notice to Admit at issue is completely improper for several reasons. It runs afoul of the well settled principal that calls for the “unhesitating” striking of a Notice that is “burdensome, unnecessarily detailed, prolix, replete with immaterial and irrelevant demands and seeks information far beyond the scope and intendment of disclosure” Nader v. General Motors Corp., 1967, 53 Misc.2d 515, 279 N.Y.S.2d 111, affirmed 29 A.D.2d 632, 286 N.Y.S.2d 209.

 

It wrecks itself on the admonition that a Notice to Admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial The Hawthorne Group, LLC v. RRE Ventures 7 A.D.3d 320, 776 N.Y.S.2d 273, (App. Div. 1st Dept.,2004).

 

 

But to complain that the instant Notice to Admit it is prolix, vexatious or irrelevant  misses the principal point; that being that the so-called Notice to Admit does not in the least attempt to accomplish the very reason for existence. It has consistently been described as existing in order to resolve

"clear-cut" matters of fact about which [the parties] reasonably believed there could be no dispute or controversy” (CPLR 3123 [a]; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3123:1, at 710, quoting Spawton v. James E. Strates Shows, 75 Misc.2d 813, 814, 349 N.Y.S.2d 295; Taylor v Blair 116 A.D.2d 204, 206, 500 N.Y.S.2d 133.

 

Reasonably believed” are the operative words. They impart a requirement of knowledge and consideration to the process. They mean that a lawyer needs to know something about the facts of their case in order to use a Notice to Admit.  It might seem difficult to believe that  lawyers would routinely pump out boilerplate Notices to Admit without the slightest knowledge about the facts of their case, but that is clearly what is occuring here. As  may be seen from a simple review of the document attached purported “Notice to Admit” in question,  no where in its entirety is there a single iota of factual information particular to the instant case.

 

The inescapable conclusion, and as Plaintiff must readily acknowledge, the document is nothing more than a boilerplate form generated and to be served in each and every instance, without any change or variation, in allo of plaintiff’s cases. The paragraphs vary not a dot and care not if the case turns on questions of medical necessity, additional verifications, fee schedule, independent medical examinations, staged accidents or any of the other dozen reasons that disputes arise between insurers and medical providers.

 

In this blunderbuss approach, if one of the  paragraphs by dint of fortune strikes on an issue central to the case, its demands an admission of the ultimate fact of the case, should all the other demands be utterly irrelevant they clamor for equal attention none the less.

 

Whereas there is little new under the sun, this practice  has been condemned in the past. As the Appellate Division of the First Department observed in Berg v. Flower Fifth Ave. Hospital, (102 A.D.2d 760, 476 N.Y.S.2d 895, 1984)  “On review of the notices served here, we are in agreement that plaintiffs have made no attempt to limit them to factual matters which they reasonably believe are not in dispute.”

 

The Berg Court went on to restate the familiar remedy for such an abuse. “[W]e deem it unwise and unnecessary for the court to prune the requests to construct for counsel and the parties a proper notice to admit as suggested in the concurring memorandum and, accordingly, we vacate the notices in their entirety”.

 

As is clear from the consideration outlined above, the “Notice to Admit” in question is one which the Civ. Prac. L. & Rules do not provide for, is not a practice that the  Courts have countenanced and  is not worthy of a role in the affairs of this court or its participants.

 

Wherefore, Plaintiff’s purported “Notice to Admit” should be ruled a nullity without meaning or effect in the instant action.

 

Stern & Montana LLP

 

 

By Peter J. Creedon

Attorneys for Defendant’s

115 Broadway

New York, New York 1006