Under New York law, the decision to serve a non-substantive or inadequate response to a notice to admit, rather than moving for a protective order, carries significant legal considerations and potential consequences. Each approach has distinct implications under NY CLS CPLR § 3123 and NY CLS CPLR § 3103.  

Legal Considerations for Serving a Non-Substantive or Inadequate Response

NY CLS CPLR § 3123. provides that a party served with a notice to admit must respond within 20 days by either specifically denying the matters of which an admission is requested or explaining why they cannot truthfully admit or deny them. Failure to provide a timely and adequate response results in the matters being deemed admitted for the purposes of the action. Such admissions are considered formal judicial admissions and are conclusive for the pending action, unlike admissions made during depositions, which are not binding. An inadequate or non-substantive response risks the court deeming the matters admitted, which could have severe consequences if the admissions pertain to material facts central to the case.

For example, in Danielle W. v. Jentsch & Co., Inc., 217 A.D.3d 1472, the court emphasized that admissions obtained through a notice to admit are binding and conclusive for the action. Additionally, if the responding party unreasonably denies a request and the requesting party later proves the matter, the court may impose penalties, including reasonable expenses and attorney’s fees, unless there were good reasons for the denial or the admissions sought were of no substantial importance. NY CLS CPLR § 3123.  

Legal Considerations for Moving for a Protective Order

NY CLS CPLR § 3103 allows a party to move for a protective order to prevent unreasonable annoyance, expense, embarrassment, or prejudice resulting from improper use of disclosure devices, including notices to admit. A motion for a protective order suspends disclosure of the disputed matter until the court resolves the motion. This approach is particularly appropriate when the notice to admit seeks admissions on material or ultimate issues, legal conclusions, or matters that should be addressed through other disclosure devices, as such uses are improper under NY CLS CPLR § 3123, 32nd Ave. LLC v Angelo Holding Corp., 134 A.D.3d 696, Tolchin v. Glaser, 47 A.D.3d 922, Taylor v. Blair, 116 A.D.2d 204, Kimmel v. Paul, Weiss, Rifkind, Wharton & Garrison, 214 A.D.2d 453.  


Courts have consistently held that notices to admit are intended to eliminate uncontested matters from litigation, not to compel admissions on material issues or to serve as a substitute for other discovery methods in 32nd Ave. LLC v Angelo Holding Corp., 134 A.D.3d 696, Tolchin v. Glaser, 47 A.D.3d 922, and Taylor v. Blair, 116 A.D.2d 204.

For instance, in Tolchin v. Glaser, 47 A.D.3d 922, the court affirmed the striking of a notice to admit that improperly sought admissions on ultimate issues. Similarly, in Kimmel v. Paul, Weiss, Rifkind, Wharton & Garrison, 214 A.D.2d 453, the court struck a notice to admit that predominantly sought admissions on material and ultimate issues.

Comparative Analysis and Consequences

1. Non-Substantive or Inadequate Response: This approach risks the matters being deemed admitted, which could be detrimental if the admissions pertain to critical facts. Additionally, penalties may be imposed for unreasonable denials. See: NY CLS CPLR § 3123, Danielle W. v. Jentsch & Co., Inc., 217 A.D.3d 1472.    
   
   However, this approach avoids the immediate burden of filing a motion but may lead to adverse consequences later in the litigation.

    
2. Motion for Protective Order: Moving for a protective order is generally preferable when the notice to admit is improper, as it allows the court to address the issue before any admissions are deemed binding. The burden initially lies with the moving party to demonstrate the impropriety of the notice, such as irrelevance or overreach. See: Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 A.D.3d 401.  
   
   If successful, this approach prevents prejudicial admissions and ensures that discovery proceeds appropriately.

What this means

Given the binding and conclusive nature of admissions under (NY CLS CPLR § 3123), it is generally preferable to move for a protective order when faced with an improper notice to admit. This approach safeguards against the risk of prejudicial admissions and ensures compliance with the intended purpose of the notice to admit, which is to streamline litigation by addressing uncontested matters. See: 32nd Ave. LLC v Angelo Holding Corp., 134 A.D.3d 696, Tolchin v. Glaser, 47 A.D.3d 922, Taylor v. Blair, 116 A.D.2d 204.  

However, the choice between these approaches should be carefully evaluated based on the specific circumstances of the case and the content of the notice to admit.

If you have questions about responding to a Notice to Admit, please contact jif@gdblaw.com directly.