New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2009-032-111, Claim No. 113875, Motion No. M-75947


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Joseph F. Romani, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
March 3, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This wrongful confinement claim arose at Southport Correctional Facility between December 16, 2006 and March 26, 2007. Claimant alleges that during this 101-day period he was confined to the Special Housing Unit (SHU) in violation of the relevant disciplinary regulations. The confinement came about as the result of a September 14, 2006 inmate misbehavior report charging claimant with solicitation of sex and “unauthorized exchange.” Claimant was found guilty of the charges and sentenced to four months in SHU (a six month sentence with two months suspended), to begin December 16, 2006.

In his claim, claimant alleges that the information on the misbehavior report was inadequate and incorrect because on the date and at the time given for the alleged misconduct he was in one cell block and the person whom he allegedly solicited was at a different location. He further alleges that the disciplinary hearing was flawed because relevant evidence was not electronically recorded and because the sergeant who had issued the report presented no “testimonial evidence” on which a conviction of either offense could be based. Finally, claimant alleges that the hearing officer “was not fair and impartial [and] deprived claimant [of] a fair and impartial hearing” (Claim, ¶16).

After this action was commenced and issue joined, claimant served on defendant a “Notice to Admit” (Lamage Affidavit, Exhibit C), which consisted of 17 factual statements, some of them with sub-parts. The notice, dated October 13, 2008, was directed to the attention of an official at Southport Correctional Facility. The State’s response, (id. Exhibit D) was filed with the Court on October 23, 2008 and read as follows:
3. A “Notice to Admit” under CPLR 3123 may not be used to establish matters of fact and cannot be utilized to seek admissions of material issues or ultimate or conclusory facts. See, Burnside v. Foglia, 208 AD2d 1085 (3d Dept. 1994); Miller v. Hilman Kelly Co., 177 AD2d 1036 (4th Dept. 1991).
4. To the extent that Claimant seeks a response to his “Request for Admission of Fact”, Defendant DENIES each and every statement, numbered 1 through 6 inclusive, contained therein.

Claimant argues that this response is a “nullity” because it did not come from someone with personal knowledge of the facts. In addition, he asserts that because the employee to whom the Notice to Admit was addressed remained silent, the statements contained in the notice must be deemed to be admitted. It is on the basis of these “admitted” facts that claimant now moves for summary judgment in his favor.

Summary judgment is a drastic remedy that should only be granted when there are no outstanding issues of material fact (Redcross v Aetna Cas. & Sur. Co., 260 AD2d 908, 913-914 [3d Dept 1999], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Court's task is issue finding, not issue determination, and before judgment can be granted it must be clearly ascertained that there are no triable issues of fact outstanding (Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002], citing to Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994] and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The Court's function in deciding a motion for summary judgment is to determine if any issues of fact exist. In order to do this, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]).

Pursuant to CPLR 3123 (a), a party may serve the opposing party with a written request seeking agreement as to “the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs” or to “the truth of any matters of fact set forth in the request.” The matters of fact to which admission can be sought are limited to those that 1) the party requesting the admission reasonably believes to be undisputed; and 2) are within the knowledge of other party or able to be determined by him with ease. The party on whom the notice to admit has been served has twenty days in which to respond with either a specific denial, a statement that he is unable to either admit or deny, a statement asserting a privilege, or an admission with qualification or explanation. If there is no response, the matter is deemed to be admitted only with respect to the action in which the notice was served. Matters that are deemed admitted pursuant to a notice to admit are still “subject to all pertinent objections to admissibility which may be interposed at the trial” (CPLR 3123[b]).

The statute does not indicate who may, or must, respond to a notice to admit, and caselaw suggests that the specific matters to which admission is sought and the nature of the response provided determine whether and when an attorney may respond on behalf of his or her client

(ELRAC, Inc. v McDonald, 186 Misc 2d 830 [Sup Ct, Nassau County 2001] [“While the court is not prepared to state that an attorney may never answer a notice to admit, an attorney should only be permitted to do so if the attorney has knowledge of the facts or if the answers are based on documentary evidence. . . .” id. at 833]; see also Scavuzzo v City of New York, 12 Misc 3d 1180(A) [Sup Ct, Kings County 2006]).

A notice to admit is to be used only for establishing uncontroverted or easily proven facts and thus when the demand seeks to have the other party concede matters that are clearly in dispute and/or constitute fundamental contested issues of fact, the appropriate response is to reject the demand as “palpably improper and beyond the scope of the purpose of a Notice to Admit” (Wen Ying Ji v Rockrose Development Corp., 21 Misc 3d 1104 [A][Sup Ct, NY County 2008], citing Washington v Alco Auto Sales, 199 AD2d 165 [1st Dept 1993]; Miller v Kelly Co., 177 AD2d 1036 [4th Dept 1991]).

Here, the State’s initial response was to object to the Notice to Admit, in its entirety, as improper because the device “may not be used to establish matters of fact and cannot be utilized to seek admissions of material issues or ultimate or conclusory facts.” As noted above, however, one of the chief purposes of a notice to admit is to establish “the truth of any matters of fact set forth in the request” (CPLR 3123[a]), so defendant’s assertion that the device may not be used to establish matters of fact must fail.

The cases cited by defendant for the proposition that notices to admit cannot be used with respect to “material issues or ultimate or conclusory facts” more accurately focus on the issue of whether the facts are contested. In Burnside v Foglia (208 AD2d 1085 [3d Dept 1994]), the central issue was whether money advanced from one party to the other had been a gift or a loan. The defendant’s failure to respond to a request for admission that the transfer had been a loan did not serve to resolve that issue, because “[r]equests for admissions with respect to contested facts that go to the very essence of the dispute” are palpably improper (emphasis supplied). Likewise, in Miller v Kelly Co., supra, defendant improperly sought admissions of contested ultimate issues, rather than matters “which they reasonably believed there could be no dispute or controversy.” Consequently, defendant’s rejection of the entire notice to admit on the ground it was being used to establish matters of fact or seeking admission of material issues, without any indication that the facts or matters were contested, was inadequate and would not remove from defendant the obligation to respond to the individual items contained in the notice.

Defendant’s alternative response, denying “each and every statement, numbered 1 through 6 inclusive” is puzzling, because the complete notice to admit contains 17 items. Defendants silence with respect to statements numbered 7 through 17 inclusive must be deemed an admission of those statements (Siegel, Practice Commentary, McKinney’s Consol Laws of NY, Book 7B, CPLR 3123, C3123:5). It is unfortunate that defendant did not either respond to these items individually or seek a protective order pursuant to CPLR 3103 (Nader v General Motors Corp., 53 Misc 2d 515 [Sup Ct, NY County 1967], affd 29 AD2d 632 [1st Dept 1967]), because at least six of the eleven statements (Nos. 8, 9, 11, 12, 15 and 16) seek admission of matters that are unquestionably in dispute. In essence, these statements ask defendant to admit that there was insufficient evidence on which to base the convictions. While there is some authority to suggest that a party faced with a palpably improper request for admission simply has no duty to respond (Orellana v City of New York, 203 AD2d 542 [2d Dept 1994]), the statute itself indicates that the facts are deemed to be admitted. At the same time, it contains generous provisions for courts to “allow a party to amend or withdraw any admission on such terms as may be just” (CPLR 3123 [b]). Such withdrawal or amendment must be sought by the party that made, or was deemed to have made, the admission, however, and should not be granted “merely because the admission is too damaging” (Siegel, Practice Commentary, McKinney’s Consol Laws of NY, Book 7b, CPLR 3123; C3123:7; Webb v Tire and Brake Distributor, Inc., 13 AD3d 835, 838 [3d Dept 2004]). On the other hand, there is authority for courts to entertain an application to withdraw or amend even at trial and even where the party on whom the notice was served was “culpably neglectful” in failing to respond, if the admissions sought were palpably improper and there could have been no reasonable belief that the matters were free from dispute (Marguess v City of New York, 30 AD2d 782 [1st Dept 1968], affd 28 NY2d 527 [1971]).

Consequently, where, as here, a party goes outside the purpose of the statute and seeks admission of matters beyond the “clear-cut matters of fact that he could reasonably believe were not subject to dispute,” the opposing party’s failure to respond to such a notice to admit cannot, without more, serve as the basis for a summary judgment (Howlan v Rosol, 139 AD2d 799, 801 [3d Dept 1988]; see also Eddyville Corp. v Relyea, 35 AD3d 1063, 1066 [3d Dept 2006]; Nanco Environmental Services Inc. v Camo Laboratories Inc., 245 AD2d 601, 603 [3d Dept 1997]).

Inasmuch as claimant has failed to prove, as a matter of law, that there are no material issues of fact, his motion for summary judgment is denied.

March 3, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Supporting Affidavit of Edwin Lamage, pro se, with annexed Exhibits;

2. Affirmation in Opposition of Joseph F. Romani, AAG, with annexed Exhibit; and

3. Reply Affidavit of Edwin Lamage, pro se.

Filed papers: Claim, Answer