On May 9, 2025, Justice Cohen of the New York County Commercial Division issued a decision in FitzCon Constr./Ren Corp. v. 5531-321 E. 22nd St. Manhattan LLC, 2025 NY Slip Op. 31692(U), holding that when a party fails to respond to a Notice to Admit is is deemed to have admitted the facts at issue, explaining:
On November 11, 2021, Casa and Prime served CPLR 3123 Notices to Admit on Fitzcon via Certified Mail. Casa and Prime submit that Fitzcon did not respond. Casa and Prime’s Notice to Admit call on Fitzcon to admit, among others, that it entered into agreements with Casa and Prime in connection with the Project, that it received material deliveries from Casa and Prime at the Projects, that it signed delivery tickets upon receipt of those deliveries, that Casa and Prime invoiced Fitzcon for the materials they delivered to Fitzcon at the Project in sums certain, and that Fitzcon did not make any payment to Casa and Prime as against those invoices. Casa and Prime’s Notice to Admit likewise append the aforementioned signed delivery tickets and invoices and called upon Fitzcon to admit that it never objected to those invoices.
As such, through its failure to respond to Casa and Prime’s Notices to Admit, Fitzcon has admitted, inter alia, that: (a) Casa and Prime were both in privity with Fitzcon at the Project; (b) Casa and Prime each rendered valuable performance to Fitzcon at the Project; (c) Casa and Prime’s performance is accurately reflected in the delivery tickets attached to their respective Notices to Admit; (d) regardless of the scope of their agreements with Fitzcon, Casa and Prime expected to be paid for the performance they rendered on Fitzcon’s behalf, as evidenced by the invoices attached to their respective Notices to Admit; (e) through its admitted failure to object to those invoices, Fitzcon agreed that those invoices accurately reflected the value of Casa and Prime’s performance — i.e., $6,170.82 as to Casa, and $2,874.30 as to Prime; and (f) Fitzcon failed to pay Casa and Prime any of the invoiced amounts.
(Internal citations omitted).