Altman v Kelly,

___ AD3d ___, 2015 NY Slip Op 04076 [2d Dept., 2015]

The notice to admit can be a useful, but limited, device to eliminate undisputed matters of fact from litigation. The limitation comes from well-established law holding that a notice to admit cannot be used to establish a fact that is an “ultimate conclusion” in the action, or one which “goes to the heart of the matters at issue.” (Priceless Custom Homes, Inc. v. O’Neill) In this motor vehicle negligence case the defendant Islip Pizza made admissions which, had they stood, would have established the essential issue of respondeat superior. That was sufficient cause to allow it to withdraw the admissions in the face of the plaintiff’s motion for summary judgment.

The individual defendant Kelly was driving his own vehicle at the time of the accident. Liability on Islip Pizza, therefore, accrued by virtue of respondeat superior or not at all. Plaintiff’s notice sought admissions that the offending driver was “in the course of his employment” with Islip Pizza at the time, that he was “acting in the scope of his employment”, and was “acting in furtherance” of its business. Islip Pizza, of course, could have objected to the notice as seeking admissions of ultimate fact. It might also have denied the requested admissions, or even ignored the notice. Instead, it admitted each of the facts. Note, by the way, that while a failure to respond to a proper request for admissions establishes the facts involved for the purpose of the litigation, there is no obligation to respond to a request which seeks admission as to contested ultimate issues (Orellana v. City of New York, 203 A.D.2d 542 [2d Dept., 1994]). The recipient’s failure to respond does not transform improper requests into admissions (Williams v. City of New York.)

Based in part on the admissions, plaintiff moved for summary judgment on liability against Islip Pizza. Islip Pizza cross-moved to withdraw the admissions. Supreme Court granted summary judgment, and denied the cross-motion. The Second Department reversed on both counts. Respondeat superior was an ultimate issue in the case, and the requests for admissions were therefore improper. CPLR 3123 (b) gives the court authority to allow a party to withdraw an admission at any time. In support of its cross-motion, Islip Pizza showed evidence that Kelly was in fact not acting within the scope if his employment. The court noted that the relevant facts could be addressed at the depositions. “[T]he purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial.” (DeSilva v Rosenberg, 236 AD2d 508 [2d Dept., 1997]) Without the admissions, plaintiff failed to establish his entitlement to judgment, and the motion for summary judgment was denied without prejudice to renewal after disclosure.