Notices to Admit

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 199-224

Chapter 30

NOTICES TO ADMIT

QUICK VIEW

Definition: A notice to admit is a writing, served by one party on another party, requesting that the responding

party admit: the truth of specified facts, the genuineness of specified documents, or the correctness or fairness of

representation of any photograph.

Scope of Chapter: How to use notices to admit, and their permissible scope. Propounding the notice. Responding

to the notice. Effect of failure to respond. Protective orders. Challenging the response. Relief from admissions.

Use of responses at trial. Sanctions for refusal to admit.

Strategies and Tactics: Treat notices to admit with respect. Matters admitted are conclusively established for trial.

If a party served with a notice to admit fails to timely respond, the matters stated in the request are automatically

admitted against that party. If the responding party refuses to admit matters later proven to be true, that party may be

liable for the expenses — including attorney fees — the requesting party incurs proving the matters.

Statutes and Rules: CPLR 3123; also CPLR 2004, 3101, 3102, and 3103.

Related Topics: Motion Practice, Ch 16; Scope of Discovery, Ch 24; Interrogatories, Ch 29; Protective Orders,

Ch 31.

TABLE OF CONTENTS

I. General Points

A. Overview

§30:01 Use

§30:02 Purpose

§30:03 By Whom, on Whom

§30:04 Admissions Are Binding

§30:05 Not a True Disclosure Device

B. Narrow Scope of Notices to Admit

§30:10 Must Be Relevant and Not Privileged

§30:11 Must Be Known or Knowable by Responder

§30:12 Not for Disputed Matters

§30:13 Not for Dispositive Facts

§30:14 Not for Facts Requiring Expert Opinion

§30:15 Not for Probing Matters of Law

§30:16 Not for Uncovering New Facts

§30:17 Not for Clarifying Responder’s Contentions

NEW YORK CIVIL PRACTICE BEFORE TRIAL 30-2

II. How To Use Notices to Admit

A. General Strategies

§30:30 Identify Matters to Cover

§30:31 Indisputable Dispositive Facts

§30:32 Basis for Summary Judgment

B. Documents and Photographs

§30:40 Establish Foundation for Admitting Documents

§30:41 Establish Document’s Authenticity

§30:42 Establish Document as Business Record

§30:43 Consider Using a Separate Notice for Documents

§30:44 Photographs

C. Use With Other Discovery Tools

§30:50 General Points

§30:51 No Substitute for Other Tools

§30:52 Depositions and Interrogatories

§30:53 Follow-Up Discovery

III. Propounding a Notice to Admit

A. Drafting Format and Techniques

§30:60 Standard Court-Paper Format

§30:61 Caption

§30:62 Introductory Paragraph

§30:63 Definitions

§30:64 One Request for Each Fact

§30:65 Make Requests Clear and Simple

§30:66 Avoid Subparts

§30:67 Numerical Order

§30:68 No Limit on Number

§30:69 Attach Documents

§30:70 Indorsement and Proof of Service

B. Service and Filing

§30:80 Earliest Date to Serve

§30:81 Latest Date to Serve

§30:82 Timing Strategies

§30:83 Service Requirements

§30:84 Filing Not Required

IV. Responding to Requests

A. General Points

§30:90 Harsh Consequences

§30:91 Automatic Admission if No Timely Response

§30:92 Consult with Client

§30:93 Service (but No Filing)