Judge Fred Hirsh
Midland Funding moved to preclude Valentin from offering evidence if she did not respond to a notice to admit. It sued, as Citibank’s assignee, to recover amounts allegedly due on a Citibank credit card claiming Valentin defaulted on payments on a card issued by Citibank. Midland claimed Citibank assigned Valentin’s debt to it giving it standing to maintain the action. Valentin’s answer admitted she was a Nassau County resident, but denied having sufficient information to answer the remaining allegations in the complaint. The court stated a proper notice to admit was self-executing and a party who did not respond to the notice was deemed to have admitted the items in it for purposes of the action in which the notice was served. Yet, it ruled the notice here was "unquestionably improper" as it required Valentin to admit or deny all the elements of Midland’s prima facie proof in its claims for breach of contract and account stated, finding the notice went to the heart of the issues. The court stated Midland sought to use the notice to overcome its inability to lay a proper foundation for admission of documents necessary to establish its prima facie case at trial. Thus, Midland’s motion was denied, and Valentin’s failure to respond to the notice was not deemed an admission.
