The Notice to Admit in Legal Malpractice

Defense attorneys in legal malpractice cases often try to use a Notice to Admit [CPLR 3123] to get over the hump of some point within their burden of proof.  A notice to admit is really for use with non-controversial factual situations, for example, whether a documents is genuine, or to avoid proofs of an underlying, but not controversal fact.

Here the Syracuse defense attorneys went beyond the pale, and not only mixed law and facts in their notice to admit, but pushed on with its use after plaintiff's attorney, in effect, denied the notice by letter.  The AD held that SupCt should have denied the defense use of the notice to admit.

Williams v Kublick
2007 NY Slip Op 05844
Decided on July 6, 2007
Appellate Division, Fourth Department

"Memorandum: In this legal malpractice action, Jan S. Kublick and Davoli, McMahon and Kublick, P.C. (collectively, defendants) served a notice to admit facts concerning the underlying lawsuits (see CPLR 3123). We previously affirmed an order denying the motion of defendants for summary judgment dismissing the complaint against them (Williams v Kublick, 30 AD3d 1032), and we thereafter determined that Supreme Court erred in granting defendants' subsequent motion seeking that same relief (Williams v Kublick, ___ AD3d ___ [June 8, 2007]).

The court erred in granting the motion of defendants seeking an order deeming the facts in their notice to admit as having been admitted by plaintiff and in denying plaintiff's cross motion seeking an order permitting plaintiff to respond to the notice to admit "as though [the response was] timely interposed." Although plaintiff failed to comply with CPLR 3123 (a) by responding to the notice in a sworn statement in which he either denied the facts therein or explained why the facts could not be truthfully admitted or denied, it is undisputed that counsel for the parties corresponded with respect to the notice to admit. Defendants' counsel and plaintiff's counsel exchanged correspondence with respect to plaintiff's position that the facts sought to be admitted involved mixed questions of law and fact and therefore required resolution at trial (see generally DeSilva v Rosenberg, 236 AD2d 508). Defendants thus were aware of the basis for plaintiff's failure to respond to the notice to admit. We note in addition that there was [*2]extensive discovery with respect to the issues in the underlying lawsuits. We therefore conclude that the court abused its discretion in denying plaintiff's cross motion (see generally Kowalski v Knox, 293 AD2d 892, 893). "

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