On September 26, 2024, Justice Chan of the New York County Commercial Division issued a decision in Novum Energy Trading Inc. v. Transmontaigne Operating Co. L.P., 2024 NY Slip Op. 33524(U), holding that requests to admit that go to material issues are improper, explaining:
CPLR 3123 permits requests for admissions as to the truth of matters of fact set forth in the request, as to which the party requesting admission reasonably believes there can be no substantial dispute at trial and which are in the knowledge of the other party or can be ascertained by him upon reasonably inquiry.
Notices to Admit are intended to crystallize issues for trial and to eliminate from trial those that are easily provable or not really in dispute, and not to obtain information in lieu of other disclosure devices. For instance, the notice to admit cannot be utilized to seek admissions of material issues or ultimate or conclusory facts, interpretations of law, questions already admitted in responsive pleadings, or questions clearly irrelevant to the case. Nor can the notice to admit be used to seek information which would not reasonably be expected to be within the personal knowledge of the party served.
All but one of the requests are improper.
The ultimate issue in this case is whether the Second Amendment merely added an extra tank or if it instead extended the Service Term for all four tanks, and thus Requests 4 and 7 are obviously improper. Request 1 is improper for the same reason. While there is a reading of Request 1 that could merely be asking how many times the words “Service Term” appear in Section 4 of Attachment A, it can also easily be read to ask for an admission that no other part of the TSA elucidates or has any bearing on the Service Term. Given that the Service Term is the fundamental issue in this case, Requests 1, 4, and 7 are all improper.
Request 5 is similarly improper. The request initially appears benign-“last of the Tanks put into service” seems like a clear-cut question of fact about chronology. In context, however, the request gets at the “material issues” in the case. The ultimate question is whether the Second Amendment impliedly modified the “Service Term” and, more specifically, the “Final In-Service Date.” The TSA defines the Final In-Service Date as “the first day of the Month following written notice from [defendant] to [plaintiff] that the last of the Tanks that is planned for construction in Section 6(A) of Attachment A is ready” for plaintiffs use. Thus, by using the specific phrasing “last of the Tanks put into service,” Request 5 cuts directly to the heart of the case and asks for a legal conclusion about a term in the contract. Request 5 is improper.
Request 2 is improper because defendant cannot “reasonably believe” that there is no “substantial dispute” that the parties both executed the Second Amendment on December 31, 2019. As plaintiff points out, the Second Amendment itself clearly shows that defendant signed on January 2, 2020, a different date. It does not matter that the complaint alleged December 31, 2019-the contradictory evidence in the document itself clearly defeats this Request.
Request 6 is improper for three reasons. First, the in-service dates of the tanks are material issues of fact, as discussed above. Second, determining the date that Tank 8110 was “declared in-service” requires a legal conclusion about both the definition of “in-service” and what counts as a “declaration” in this instance. Third and finally, the date that Tank 8110 was “declared” anything is arguably uniquely within defendant’s knowledge, not plaintiffs, as defendant controls the Tank.
Request 8 is also improper. While it is unclear whether Request 8 is proper on its face, it is clearly improper in context: Defendant provides no explanation for its propriety except that it seeks an admission from Novum, which is the only party with knowledge as to its calculations regarding the termination dates in the TSA. The implication is that defendant is using Request 8 to “obtain information in lieu of other disclosure devices,” which is not a proper use of a request for admission.
The only request that is not improper is Request 3. 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. Moreover, the absence of a Service Term can be easily proved by a quick skim of the Second Amendment.
(Internal quotations and citations omitted).