On May 31, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Alsatdi v. Alsaede, 2023 NY Slip Op. 31914(U), holding that a Notice to Admit cannot be used regarding an ultimate contested fact, explaining:
It is well settled that a notice to admit is a proper device to resolve matters of fact, about which there is no disagreement, in order to expedite matters for trial. However, a notice to admit may not be utilized for ultimate contested questions of fact. This court has already held that issues of consideration are proper and will require resolution in the course of litigation. Thus, in an order dated August 25, 2022 the court denied the plaintiff’s motion seeking to dismiss a claim of lack of consideration. The court explained that Abdo fully admits that he transferred the one third interest to the plaintiff without any consideration at all upon the promise of future consideration. Whether that promise renders any consideration inadequate or whether a gift was really intended in any event are matters that will be resolved through discovery. Next, in another order also dated August 25, 2022 the court considered the plaintiff’s motion seeking a declaratory judgment he is an owner of the property. The court explained that the chief basis objecting to any ownership is the lack of any evidence of any contribution or consideration. While that matter may be raised to the trier of fact as a defense, it defies common sense the defendants would include the plaintiff as an owner within the operating agreement and provide him with contributions reflected in tax documents, for numerous years, if he was not an owner, notwithstanding the lack of any concrete evidence demonstrating consideration. The totality of the operating agreement and the tax documents raise significant questions whether the plaintiff is a one third member of the corporation and that question can only be resolved by a jury. Again, in a decision dated January 25, 2023 dealing with the failure to provide discovery the court explained that responses regarding consideration were proper and whether that response is sufficient to establish consideration is a question that will be explored by the parties and is beyond the scope of this motion.
The defendants have now attempted to resolve the consideration issue via notices to admit. These notices to admit seek to undermine the plaintiff’s ability to argue he obtained the one third interest with valid consideration. That is an improper use of a notice to admit.
(Internal quotations and citations omitted).