Requests To Admit Mostly Stricken For Seeking Admission Of Disputed Facts, Ultimate Issues

On August 27, 2024, in Novum Energy Trading Inc. v. Transmontaigne Operating Co. L.P., Index No. 655283/2023, Justice Margaret A. Chan found all but one of a defendant’s eight Requests for Admission to be improper.

The case concerned whether an amendment to the parties’ contract extended the Service Term for all four of the tanks that the contract concerned, or whether, rather, it merely added an extra tank.

Plaintiff’s Requests 1, 4 and 7 sought admissions about the contract’s Service Term. This rendered them improper because “the Service Term is the fundamental issue in this case”, Slip op., p. 3, and “‘the notice to admit cannot be utilized to seek admissions of material issues or ultimate or conclusory facts’”. Id., p. 2, Vi1la v New York City Haus. Auth., 107 A.D.2d 619, 619-20 (1st Dept 1985).

Request 2 was improper in seeking an admission as to the date the Second Amendment to the contract was executed, because CPLR 3123(a) limits Notices to Admit to matters “‘as to which the party requesting admission reasonably believes there can be no substantial dispute at trial.’” Id., p. 2 (quoting statute). Defendant could not reasonably believe that there was no dispute as to the proposition that both parties “executed the Second Amendment on December 31, 2019”, when “the Second Amendment itself clearly shows that defendant signed on January 2, 2020, a different date”. Id., p. 3.

Request 5 sought an admission that a specific tank was the last “put into service”. Id. This was not a permissible “clear-cut question of fact about chronology”, as it might seem, because the “ultimate question” in the case “is whether the Second Amendment impliedly modified the ‘Service Term’ and, more specifically, the ‘Final In-Service Date’”. Id.

Request 6 was improper for the same reason, as it concerned the date that same tank was declared to be in service. It also failed because it sought a legal conclusion, and concerned a matter “arguably uniquely within defendant's knowledge, not plaintiffs”, and a Notice to Admit may not properly seek “‘information within the unique knowledge of other parties.’” Id. (citation omitted).

Request 8 i sought an admission that “Novum relied on TransMontaigne, which is the only party with knowledge as to its calculations regarding the termination dates.” Id., pp. 3-4. This attempt to get information available through other disclosure devices was not a proper use of the request to admit.

Only Request 3 – seeking an admission that “The Second Amendment does not list a Service Term” – was proper. “While the Service Term itself is at the heart of the issues in this case, it is precisely because the Second Amendment does not ‘list’ a Service Term that there is an issue to begin with [and] the absence of a Service Term can be easily proved by a quick skim of the Second Amendment.” Id., p. 4, (quoting Fetahu v. New Jersey Tr. Corp., 167 A.D. 3d514, 516 (1^st Dep’t 2018).

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