Use, Scope and Limitations of the Notice to Admit
In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner and Kelner discuss the permissible scope of a notice to admit and the safeguards the statute provides if a demand contains improper items.
May 22, 2015 at 03:28 PM
12 minute read
Article 31 of the CPLR provides an array of tools to facilitate discovery. One of those tools is the notice to admit. Its intended function is to allow for the resolution of factual matters or issues that are not reasonably in dispute. A party served with a notice to admit must not ignore it. The statute provides that, if a party fails to respond to a notice to admit in a timely manner, the matters to which it is directed may be deemed admitted. Accordingly, unlike some discovery instruments, there are significant, adverse consequences or potential dispositions that may arise from the failure to respond to it in a timely fashion. In this column, we discuss the permissible scope of a notice to admit and the safeguards the statute provides if a demand contains improper items.
Scope and Purpose
Notices to admit are authorized by CPLR 3123. The statute provides, in relevant part, as follows:
(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.
The statute dictates the timing and form of a response: “[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 from the party 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.”
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