Expert: Jason Shear, Esq. - 11/13/2008

Question
Hi:

I was sued by a collection agency's attorney regarding a debt that is about 3 years old.  I filed an answer and discovery demands.  However, yesterday I got in the mail from the collection lawfirm a notice to admit.  It asks me if I ever applied for credit with the original creditor and if I owe a certain amount.  It says if I do not answer within 20 days these question are deemed admitted.  What should I do?  I live in New York.  Thank you for your help.

Answer
James:

Good job on filing an Answer and Discovery Demands.  The Notice to Admit sent to you by this collection firm is improper.  

A Notice to Admit in NY is restricted to several narrow limits including those items as to which the party requesting the admission reasonably believes there can be no substantial dispute at trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.  A notice to admit can not be used as a substitute for existing discovery devices or a subterfuge for obtaining further discovery.  In addition, a notice to admit can not be used to ask questions pertaining to the heart of the dispute.

If you owe this debt and applied for credit with the original creditor is the heart of the dispute.  Therefore, plaintiff's notice to admit is improper.

What you need to do is file a motion pursuant to New York CPLR 3103 to strike the collection agency's notice to admit on the grounds that the requests for admission were improper under CPLR 3123.

Good luck!  Hope this gets you on the right track.  If you have any follow up questions please do not hesitate to write or call.

Jason Shear, Esq.
NY Consumer Attorney
(716) 566-8988