Part XXVI Notices To Admit Continued Notices To Admit Continued
| Jurisdiction | New York |
In the last issue, the Legal Writer began its discussion of notices to admit, a disclosure-like device. The Legal Writer gave 17 examples of proper and improper ways to write notices to admit, marked Request Nos. 1 through 17.
We continue in this issue with writing and responding to notices to admit. In this column, “adversary” distinguishes the party seeking a notice to admit (the seeking party) from the party responding to a notice to admit (the responding party). If you discuss a document in your notice to admit, CPLR 3123(a) requires you to attach the document. If you attach a document to your notice to admit, make sure you mark it as an exhibit. Plaintiffs should mark exhibit tabs using numbers, from 1 onward. Defendants should mark exhibit tabs using letters, from A onward.
Proper Ways to Use a Notice to Admit (Continued)
In the last issue, the Legal Writer discussed using a notice to admit “to establish the foundation for admitting [a specific] document[] into evidence at trial.”939 We discussed how to request from your adversary whether a document is authentic. We also discussed how to request from your adversary whether a document is genuine or an accurate copy of the original. In the framework of establishing foundation for a document, use a notice to admit to establish that a document isn’t hearsay.
Use a notice to admit to establish that a document is a business record — a hearsay exception under CPLR 4518(a). Establishing that a document is a business record before trial will make your life easier at trial. It might help you dispense with a witness who can establish the foundation for the document. Examples:
Request No. 18
The document, attached as Exhibit A, was prepared at or near the time of the events recorded in the document.
Request No. 19
The document, attached as Exhibit A, was prepared in the regular course of business.
Request No. 20
On [the date the document was created], making invoices like the one attached as Exhibit A was part of [insert the name of the appropriate party or entity]’s regular course of business.
Even though you can’t use a notice to admit to seek technical or scientific information that only an expert would give, you may get DNA tests into evidence on a notice to admit.940 Example:
Request No. 21
The certified General Hospital record, dated February 2, 2011, attached as Exhibit 1, is George Grieves’s DNA test.
Responding to a Notice to Admit
You have 20 days to respond to a notice to admit. Serve a copy of your responses on all parties.941 You don’t need to file your response with the court.
Your response must be in writing.
If you agree with all the items in the notice to admit, do nothing. Failing to respond to a notice to admit — by keeping silent — is an admission.942 No court involvement is necessary.943 Make sure, therefore, that you don’t ignore notices to admit.
Although you needn’t file your response with the court, your response should comply with the format requirements for court documents.944 Your response should have a caption. Include the name of the court, the county, the title of the action, the index number, the names of the parties, and the title of the document.945 The title of the document might be “Plaintiff’s Response to the First Notice to Admit” or “Defendant’s Response to the First Notice to Admit.” If you received a second notice to admit, label your response “Plaintiff’s Response to the Second Notice to Admit” or “Defendant’s Response to the Second Notice to Admit.” If your lawsuit has multiple parties, identify which named party is responding to the other named party’s notice to admit.
Include an introductory paragraph stating who’s responding to the requests, who propounded the requests, and what the responses correspond to the requests in the notice to admit.946 Example: “In response to plaintiff Amanda Blake’s First Notice to Admit, defendant Frank Martino replies as follows, in the order corresponding to the notice to admit.”947 If your lawsuit has multiple plaintiffs or multiple defendants, specify clearly which party is responding to the notice to admit and which party sought the admissions.
You don’t need to repeat in your response your adversary’s requests from its notice to admit. It’s time consuming and unnecessary. And CPLR 3123 doesn’t require you to rewrite your adversary’s request. Just respond to the requests. Example:
Response to Request No. 1
Admitted.
Response to Request No. 2
Denied.
Aside from not responding to a notice to admit — silence is an option — you have six other options in responding to a notice to admit: (1) admit the fact(s); (2) deny the fact(s); (3) state your inability to admit or deny the fact(s); (4) partly admit the fact(s) or admit with a qualification or explanation; (5) state that the fact(s) is a trade secret, privileged, or “immunized matter under CPLR 3101(b)–(d)”;948 or (6) move for a protective order.949
Total Admission
If you agree with the request, admit it. It’s best to admit a request expressly if you know that the fact is true. If you don’t admit a fact in your response and your adversary later proves that fact at trial, your client might be liable for your adversary’s expenses in proving that fact at trial. For more information, see “Post-Trial Sanctions Motion,” later in this column. If you’re unsure whether a request is true, admit the fact with a qualification or explanation. If you admit something from a notice to admit, the admission is for the purpose of the pending action, not another action or future action,950 even if the parties are the same.951
Total Denial
If you deny something from a notice to admit, don’t equivocate. Deny the item outright. You can’t deny items from a notice to admit the same way you would deny items in pleadings. You can’t deny items from a notice to admit based “upon information and belief” or upon “knowledge of information sufficient to form a belief.”952
Inability to Admit or Deny
You may serve a sworn statement explaining why you can’t truthfully admit or deny the request.953 One reason might be that you lack information to admit or deny the request. But you’ll have to state that you’ve made a “reasonable inquiry” to get the information sought.954
Assume that Charlene Lowe was injured by an air conditioner that fell from a window of an eight-story building while she was riding on her pink Vespa. Here’s an example of a request in the notice to admit and the response:
Request No. 3
The air conditioner, which injured Charlene Lowe, was manufactured in Québec, Canada.
Response to Request No. 3
Partial Admission or Admission with a Qualification orAfter reasonable inquiry, plaintiff Charlene Lowe has insufficient information, either known or readily obtainable, to enable her to admit or deny the statement in Request No. 3. 955
Explanation
If you believe that the matters sought in a notice to admit can’t be fairly admitted without some material qualification or explanation, you may, under CPLR 3123(a), qualify or explain your responses. A request in a notice to admit might contain facts that are true (which you’ll admit), facts that are false (which you’ll deny), and facts that you can’t admit or deny.
Assume that your client is suing the defendant, Kevin Bourne, after the defendant crashed his Harley-Davidson into your client causing injuries and other damages. Here’s an example of a request in the notice to admit and your response:
Request No. 4
On May 29, 2010, defendant, Kevin Bourne, was driving an illegally modified Harley-Davidson motorcycle manufactured in Flint, Michigan. 956
Response to Request No. 4
Defendant, Kevin Bourne, admits that on May 29, 2010, he was driving a Harley-Davidson motorcycle. Bourne denies that the Harley-Davidson motorcycle was illegally modified. Bourne further states after reasonable inquiry that he has insufficient information, either known or readily obtainable, to enable him to admit or deny whether the Harley-Davidson motorcycle was manufactured in Flint, Michigan. 957
Trade Secret or Privileged or Immunized Matter
You may serve a sworn statement explaining in detail that an item sought in a notice to admit is privileged or involves a trade secret or that an individual is privileged or disqualified from testifying as a witness.958 Many of these items fall under the category of “immunized matter” discussed in CPLR 3101(b) through (d),959 such as attorney-work product. Examples:
Response to Request No. 5
Plaintiff’s request seeks information protected by a spousal privilege.
Response to Request No. 6
Plaintiff’s request seeks information from defendant that will reveal a trade secret.
Response to Request No. 7
Plaintiff’s request seeks attorney-work product.
Response to Request No. 8
Plaintiff’s request seeks information that is attorney-client privileged.
Moving for a Protective Order
If you believe that the notice to admit — in its entirety or as to specific requests — is unreasonable, you may move for a protective order under CPLR 3103.960 A good reason to move for a protective order is when your adversary’s notice to admit is vague or ambiguous. Another reason to move is when your...
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