Notices to admit are among the more potentially dangerous tools sanctioned by Article 31 of the CPLR. Unlike other devices codified in that statute, they are not mechanisms for obtaining discovery. Instead, their purpose is to streamline trials. To accomplish that goal, the penalty for a party’s failure to respond to such a notice is an admission which is binding on that party at trial. That is why the device is so potent and so perilous.

However, the permissible and proper uses of notices to admit are circumscribed, such that they should not ordinarily result in binding admissions on disputed matters of great import to the litigation. Despite this limitation, the device is often misused, and a failure to properly respond in such a circumstance can have significant consequences. It is therefore important to understand the rules and procedures applicable to notices to admit. This column examines those rules and procedures, as well as the proper and improper uses of the device in medical malpractice actions.

Statutory Prescriptions

Notices to admit are addressed in CPLR 3123. Pursuant to subdivision (a), any time after service of the answer, and at least 20 days before the trial, a party may serve on 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 subdivision goes on to provide that “[e]ach 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.” It further provides that if required, a matter can be admitted with a material qualification or explanation.

Subdivision (b) addresses the effects of an admission made under the statute either affirmatively or by silence. It specifies that the admission is “for the purpose of the pending action only,” and not for any other purpose or any other proceeding. Any admission is also “subject to all pertinent objections to admissibility which may be interposed at the trial.”

Subdivision (c) provides, as a penalty for an unreasonable denial, that the requesting party may move at or immediately after the trial for an order requiring the denying party to pay the reasonable expenses incurred in proving the matter denied, including reasonable attorney fees. It further instructs that unless the court finds good reason for the denial or that the admissions sought were not of substantial importance, the order shall be made irrespective of the result of the action.

Principles Courts Established

In addition to these express statutory prescriptions, the courts have extrapolated several principles applicable to notices to admit. Key among them is that the purpose of a notice to admit is only to eliminate from the issues in litigation factual matters which are easily provable, about which there can be no controversy, and which will not be in dispute at trial. See Taylor v. Blair, 116 A.D.2d 204, 206 (1st Dept. 1986); Nacherlilla v. Prospect Park Alliance, 88 A.D.3d 770, 771-72 (2d Dept. 2011). “The sole function of such a notice is to expedite the trial by eliminating from contention that which is public knowledge or easily provable and which the party reasonably believes is not in dispute.” Taylor, 116 A.D.2d at 207-08.

From this flows that notices to admit are not intended to cover ultimate conclusions, which can only be made after a full and complete trial, or subjects that go to the heart of the matters at issue. See Taylor, 116 A.D.2d at 206; Wolin v. St. Vincent’s Hosp. and Med. Ctr. of New York, 304 A.D.2d 348, 349 (1st Dept. 2003); Nacherlilla, 88 A.D.3d at 772; Lolly v. Brookdale Univ. Hosp. and Med. Ctr., 45 A.D.3d 537 (2d Dept. 2007). Hence, it was observed in Taylor, 116 A.D.2d at 206-07, that while a party in a wrongful death action may request another party to admit that the decedent died at a certain location on a particular date, it is improper to request that party to admit the cause of death.

The courts have also made clear that it is not the purpose of a notice to admit to obtain information in lieu of other discovery devices. See Taylor, 116 A.D.2d at 206; Nacherlilla, 88 A.D.3d at 772. Thus, it is improper to craft a notice to admit that effectively amounts to interrogatories or a deposition on written questions. See Taylor, 116 A.D.2d at 206; Berg v. Flower Fifth Ave. Hosp., 102 A.D.2d 760, 760-61 (1st Dept. 1984).

Conversely, a notice to admit is not improper merely because it seeks an admission to a matter that was already admitted at a deposition. In Groeger v. Col-Les Orthopedic, 136 A.D.2d 952 (4th Dept. 1988), a medical malpractice action, the court held that it was error to grant a motion for a protective order “precluding use of a notice to admit upon the ground that the statements had already been admitted at a pretrial deposition.” The court noted that use of both a deposition and a notice to admit is not barred by statute. Unlike other discovery devices, the penalties prescribed in CPLR 3126 have been held not to apply to notices to admit, but they are also unnecessary because CPLR 3123 is self-executing. See Glasser v. City of New York, 265 A.D.2d 526 (2d Dept. 1999).

In addition to prohibitions on ultimate issues and inquiries more appropriate for other discovery devices, the courts have determined that notices to admit should not be used for matters that seek legal conclusions, that are not within the knowledge of the party upon whom the notice is served, that are inconsistent with the pleadings of the party that submitted the notice, or that require expert opinion. See Taylor, 116 A.D.2d at 206-07; Berg, 102 A.D.2d at 760. Where a notice to admit is used in a prohibited manner, a monetary sanction may be imposed. See The Hawthorne Group v. RRE Ventures, 7 A.D.3d 320 (1st Dept. 2004). It is therefore advisable to limit the use of notices to admit to only those circumstances in which they are appropriate.

Proper and Improper Uses

With that caution in mind, we turn to decisions addressing the proper and improper uses of notices to admit in medical malpractice actions. In Berg v. Flower Fifth Ave. Hosp., 102 A.D.2d at 760-61, which involved claims of malpractice surrounding a labor and delivery, the First Department struck notices to admit served by the plaintiffs on the defendant doctors and hospital, finding that they were palpably improper and beyond the scope of CPLR 3123. The notices apparently consisted of 44 items, and the court found that the plaintiffs made no attempt to limit them “to factual matters which they reasonably believe are not in dispute.” It noted that the subject matters covered by the notices included “causation, accepted medical practices and procedures, diagnosis and expert medical opinion,” which it found were clearly beyond the scope of a notice to admit. It found that the notices “amount to a deposition on written questions,” which would defeat and detract from the purpose of the device.

While the court found that possibly one or two of the items in the notices might be proper, it determined that it would be “unwise and unnecessary” to prune the requests to construct a proper notice for counsel, and therefore vacated the notices in their entirety. One judge wrote a concurring opinion, finding proper one request asking the defendants to admit that the hospital record constitutes the full and complete record from the hospital for the plaintiff, since “the physician involved is in a much better position to answer this question than the plaintiff is.”

The court in Berg cited Falkowitz v. Kings Highway Hospital, 43 A.D.2d 696 (2d Dept. 1973), which involved claims of medical malpractice and product liability. In that case, the Second Department reversed an order and granted the defendant drug manufacturer’s motion to vacate a 33-paragraph notice to admit that the plaintiff had served, finding that “as a whole, it is patently burdensome, unnecessarily prolix and unduly protracted.” The court indicated that many items in the notice improperly covered ultimate conclusions. It further found that the notice involved technical information:

The notice in this case concerns a great deal of highly technical, detailed and scientific information, which is itself a subject for examination by an expert witness or witnesses familiar with the sales, marketing, manufacturing and chemobiological backgrounds of the product in question. Information such as that is not the proper subject of a notice to admit.

Sometimes a subject might appear to be appropriate for a notice to admit but is not because under the circumstances of the case it is deemed to address an ultimate issue. Such was the situation in DeSilva v. Rosenberg, 236 A.D.2d 508 (2d Dept. 1997). The infant plaintiff alleged, in pertinent part, that he was injured as a result of negligence in administering prostaglandin. The hospital chart contained an entry indicating that the infant’s mother was administered prostaglandin. The defendant doctors asserted that prostaglandin was never given, and that the entry in the chart was made in error by another physician who was treating a different patient.

The defendant doctors served a notice to admit on the hospital seeking an admission that the entry was authored by the physician who was treating the other patient. The plaintiff moved for a protective order striking the notice and suppressing any information obtained thereunder. The motion was denied and the plaintiff appealed. The Appellate Division reversed, finding that the notice was improper because “[t]he admissions sought by the respondents are hotly contested by the parties, and go to the heart of the matters involved in the case.” Thus, while a notice to admit pertaining to the identity of the author of a note might otherwise be perfectly appropriate, in the circumstances of this case, it was not.

It should further be noted that even if the Appellate Division had not ruled that the notice was improper, the response would not have been binding on the plaintiff. In Mack v. Arnold Gregory Memorial Hospital, 90 A.D.2d 599 (4th Dept. 1982), a medical malpractice action, the defendant hospital moved for, and was granted, summary judgment based in part on an attorney’s affidavit stating that he had served a codefendant with a notice to admit that he was not acting as an agent, servant or employee of the hospital, and that the notice was not responded to and the fact was therefore deemed admitted. The Appellate Division reversed, finding both that it is “impermissible to hold that one defendant’s failure to respond to the notice to admit of another defendant is binding on a plaintiff,” and that “the facts which defendant seeks to establish thereby constitute the ultimate facts to be determined and thus must be resolved on the basis of the evidence.”

With regard to the latter proposition, the court cited Felice v. St. Agnes Hospital, 65 A.D.2d 388, 395-96 (2d Dept. 1978), a malpractice action in which the plaintiff settled with three physicians, and continued to prosecute against the defendant hospital based upon the claim that it was vicariously liable for those doctors. The hospital pursued claims for indemnification from the physicians, who served a notice to admit on the hospital seeking an admission that they were independent contractors. The Appellate Division found the notice improper because it pertained to an ultimate fact.

In Rodriguez v. New York City Health & Hosps. Corp., 132 Misc.2d 705 (Sup. Ct., Kings Co. 1986), a defendant physician moved for summary judgment, arguing that he never treated plaintiff’s decedent. It appears that while the doctor was in a stairway returning to his apartment, the plaintiff asked him to look at her husband, who was not feeling well, and that the doctor took his pulse and told the plaintiff that her husband was very sick and needed immediate hospitalization. The doctor served notices to admit on the plaintiff and codefendant requesting admissions that he never examined, diagnosed or treated the decedent. The plaintiff did not respond, and the codefendant indicated that it had no information. The court found the notice improper as pertaining to ultimate issues in the litigation, but granted summary judgment based upon other evidence.

As noted in Taylor and Berg, causation is an ultimate fact, and is not a proper subject of a notice to admit. Accordingly, when the plaintiff in Sagiv v. Gamache, 26 A.D.3d 368 (2d Dept. 2006), served a notice on the defendants to admit that the surgery performed by one defendant was the cause of the plaintiff’s injury, the notice was stricken and the Appellate Division affirmed on the ground that it sought an admission as to an ultimate issue at the core of the dispute.

The decision in Rosenfeld v. Vorsanger, 5 A.D.3d 462 (2d Dept. 2004), demonstrates a proper subject for a notice to admit, as well as an improper response. The plaintiff served a notice on a defendant doctor and defendant medical group inquiring as to whether certain documents were faxed from the defendants’ office to plaintiff’s counsel on a particular date. The defendants’ response was stated to be made upon information and belief, and the plaintiff rejected the response as improper. The Appellate Division held that the defendants’ motion to compel plaintiff to accept the response was properly denied, finding both that the notice did not improperly address ultimate disputed facts, and that a response based upon information and belief is clearly improper.

Conclusion

Notices to admit clearly may be useful for certain purposes in medical malpractice litigation. They can be used to establish foundations for important items of evidence, and can eliminate the need to prove at trial that which should not reasonably be contested. However, these devices may also be the subject of significant misuses, and it is important for parties serving and responding to such notices to know and understand those uses which are inappropriate.

A notice to admit in a malpractice action should never inquire about the standards of care, causation, or any other matter that is properly the subject of expert opinion. They should not be used to seek admissions as to any issue that a party should reasonably anticipate to be seriously contested at trial. Moreover, lengthy notices seeking information more appropriate for depositions or interrogatories should be avoided. When a notice to admit is used improperly, the party on whom it is served must take timely and appropriate action to prevent being prejudiced by an inadvertent admission that could have very painful consequences.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.