I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 001) numbered 12-16, 18-25 were read on this motion. This motion was determined upon consideration of the following papers: the Notice of Motion to Strike the Notice to Admit together with the Affirmation in Support (NYSCEF Doc. Nos. 12 and 13); the Affirmation in Opposition (NYSCEF Doc. No. 18); and all exhibits annexed thereto. Oral Argument was conducted on the record in court on December 4, 2025.

II. Facts

This contractual action was commenced on or about January 13, 2024, by the filing of a Summons and Verified Complaint by plaintiffs Xiaocong Wu and Jun Zhao. (NY St Cts Filing [*2][NYSCEF] Doc No. 1). Service of process upon defendants was effected by nail-and-mail service on or about February 28, 2024. (NY St Cts Filing [NYSCEF] Doc Nos. 2; 3). Defendants thereafter interposed an Answer with Counterclaims on March 19, 2024. (NY St Cts Filing [NYSCEF] Doc No. 4).

After joinder of issue, the record reflects a prolonged and uninterrupted period of prosecutorial inactivity. From March 19, 2024, through at least August 11, 2025, plaintiffs undertook no material steps to advance the litigation.

On August 11, 2025, defendants served a written demand pursuant to CPLR § 3216, demanding that plaintiffs resume prosecution of the action or face possible dismissal. (NY St Cts Filing [NYSCEF] Doc No. 13 at ¶8). On that same date, plaintiffs filed upon NYSCEF a Notice to Admit. No affidavit of service of the Notice to Admit was filed on the electronic docket. (NY St Cts Filing [NYSCEF] Doc No. 6).

The Notice to Admit contained three demands. (see id). The first demand sought admissions concerning the authenticity and accuracy of an alleged WeChat conversation originally in the Chinese language with a purported English translation spanning more than fifty pages. (NY St Cts Filing [NYSCEF] Doc No. 7). The second demand sought authentication of a letter allegedly authored by plaintiffs' son. (NY St Cts Filing [NYSCEF] Doc No. 8). The third demand sought authentication of an alleged bank statement. (NY St Cts Filing [NYSCEF] Doc No. 9).

On or about October 3, 2025, defendants served responses denying all three demands. (NY St Cts Filing [NYSCEF] Doc No. 13 at ¶27). On October 13, 2025, plaintiffs served a Notice of Rejection asserting that the responses were thirty-three days late and therefore deemed admitted pursuant to CPLR § 3123 [a]. (NY St Cts Filing [NYSCEF] Doc No. 10).

Defendants now move for an order striking the Notice to Admit as palpably improper or, in the alternative, directing that their denials be accepted as effective. Plaintiffs oppose the motion on both procedural and substantive grounds.

III. Conclusions of Law

A. Procedural Objections

Plaintiffs first contend that the motion is procedurally defective because defendants' caption allegedly omitted the motion sequence number. This contention is without merit. The Clerk of the Court assigned the motion Motion Sequence #001, and the absence of that designation on the initial moving papers constitutes, at most, a ministerial irregularity that does not deprive the Court of jurisdiction.

Plaintiffs next contend that defendants' affirmation is defective for failure to include amended CPLR § 2106 language. The Court finds this contention unavailing. The affirmation was expressly made under penalty of perjury, and plaintiffs demonstrate no cognizable prejudice flowing from the asserted defect. This Court declines to elevate form over substance where the motion is fully briefed, and the issues are squarely joined.

Plaintiffs further contend that defendants' motion is defective because defendants failed to annex their responses to the Notice to Admit. That contention is likewise rejected. Plaintiffs concede that defendants served denials to all three demands, and the substance of those responses is not in dispute. The Court therefore proceeds to determine the motion on its merits.

B. Governing Legal Principles

A Notice to Admit pursuant to CPLR § 3123 is a procedural device of deliberately narrow scope and limited purpose. It exists solely to remove from the case those facts which are not genuinely in dispute and which would otherwise require unnecessary proof at trial. The statute was never intended to serve as an instrument for the extraction of contested admissions, the authentication of disputed evidence, or the circumvention of ordinary disclosure devices.

In Paycation Travel Inc. v. Global Merchant Cash, Inc., (2018 NY Slip Op 34146 [Sup Ct, Westchester County 2018]), the Court articulated the controlling principles governing the use of this device, holding that a Notice to Admit is designed only to eliminate uncontested matters which are easily provable and would otherwise burden trial, and that it may not be employed to seek admissions of material issues, ultimate facts, or legal conclusions. The Paycation court further reaffirmed that CPLR § 3123 may not be used as a substitute for depositions or evidentiary discovery.

These limitations have been consistently enforced by the Appellate Divisions. In Priceless Custom Homes v O'Neill, (104 AD3d 664 [2d Dept 2013]), the Second Department held that factual matters bearing directly upon liability are not proper subjects for a Notice to Admit. In Nacherlilla v. Prospect Park Alliance, (88 AD3d 770 [2d Dept 2011]), the Court rejected the use of a Notice to Admit where the facts sought to be admitted were central to the dispute and subject to contest. Similarly, in Rosenfeld v. Vorsanger, (5 AD3d 462 [2d Dept 2003]), Villa v. New York City Housing Authority, (107 AD2d 619 [1st Dept 1985]), and Berg v Flower Fifth Ave. Hospital, (102 AD2d 760 [1st Dept 1984]), the appellate courts uniformly condemned the use of CPLR § 3123 to compel admissions of disputed facts that require proof at trial.

The prohibition against employing a Notice to Admit as a substitute for disclosure is equally settled. In Singh v. G & A Mounting & Die Cutting, (292 AD2d 516 [2d Dept 2002]), the Second Department held that a Notice to Admit may not be used as a surrogate for depositions or other discovery devices. In DeSilva v. Rosenberg, (236 AD2d 508 [2d Dept 1997]), and Burnside v Foglia, (208 AD2d 1085 [3d Dept 1994]), the courts made clear that issues going to the very heart of the controversy are outside the permissible scope of CPLR § 3123 as a matter of law.

Finally, even where a response to a Notice to Admit is technically untimely, the Court retains discretion to disregard that default where the Notice itself is palpably improper. In Franklin v Beth Israel Medical Center, 2009 NY Slip Op 32501 [Sup Ct, NY County 2009], the Court held that a legally defective Notice to Admit cannot be transformed into binding admissions by mere procedural default, and that substantively improper demands must be stricken notwithstanding the lateness of a response.

C. The Instant Notice to Admit

Measured against these controlling principles, the Court finds that plaintiffs' Notice to Admit is palpably improper in its entirety.

The first demand seeks to compel defendants to admit the authenticity and accuracy of a WeChat transcript exceeding fifty pages, originally in the Chinese language and accompanied by an English translation. This demand necessarily requires defendants to identify the underlying [*3]communications, verify their completeness, engage in substantive interpretation, and assess the linguistic accuracy of a foreign-language translation. The demand does not concern a simple, uncontroverted factual matter. It instead seeks to compel defendants to authenticate and interpret disputed evidentiary material that lies at the core of the parties' controversy. Under Paycation Travel, Nacherlilla, and DeSilva, such a demand is an impermissible attempt to obtain evidentiary proof through procedural compulsion rather than through competent admissible evidence at trial. It is therefore palpably improper as a matter of law.

The second demand seeks to compel defendants to authenticate a letter allegedly authored by plaintiffs' son. Defendants are not alleged to be the author of that document, did not prepare it, and did not certify it. Authentication of a third-party writing offered to establish contested historical facts is a quintessential trial issue reserved for testimony, credibility determinations, and evidentiary foundation. Under Villa, Rosenfeld, and Burnside, the use of CPLR § 3123 to compel authentication of such a document is improper and cannot be sustained.

The third demand seeks to compel authentication of an alleged bank statement reflecting purported financial transfers. Defendants deny any capacity to authenticate such records. As held in Singh and Berg, a Notice to Admit may not be used as a substitute for establishing a business-record foundation. The authentication of banking records requires proper evidentiary proof, not procedural shortcut. This demand likewise exceeds the lawful scope of CPLR § 3123.

Plaintiffs rely upon Smith v Brown, (61 Misc 3d 681 [Sup Ct Bronx County 2018]), Seaside Medical, P.C. v General Assurance Co., (16 Misc 3d 758 [Suffolk Dist Ct, 1st Dist 2007]), and Prime Psychological Services, P.C. v Auto One Insurance Co., (18 Misc 3d 1122(A) [Sup Ct Bronx County 2008]). Those cases upheld Notices to Admit limited to routine, uncontroverted matters such as insurance billing facts and ministerial documentation within the responding party's direct personal knowledge.

By contrast, the instant Notice to Admit seeks authentication and interpretation of voluminous foreign-language communications, a notarized third-party letter, and financial records allegedly involving agents. These demands are neither routine nor ministerial, and they concern contested evidentiary matters central to the dispute. Plaintiffs' reliance on those authorities is therefore misplaced and unavailing.

D. Timeliness and Deemed Admissions

Although defendants' denials were served outside the twenty-day statutory period, that procedural default is immaterial where, as here, the underlying Notice to Admit is substantively defective. Under Franklin v Beth Israel Medical Center, 2009 NY Slip Op 32501 [Sup Ct, NY County 2009], a palpably improper Notice to Admit cannot be converted into binding admissions through procedural inertia. The statute does not reward misuse of CPLR § 3123 through technical default.

IV. Conclusions and Decretal Paragraphs

Plaintiffs' Notice to Admit does not seek to eliminate uncontested facts from trial. Instead, it seeks to compel defendants to authenticate and interpret disputed evidentiary materials that lie at the very core of the litigation. Such use of CPLR § 3123 constitutes a fundamental distortion of its limited purpose and is squarely foreclosed by binding precedent. The Notice is [*4]palpably improper in its entirety and must be stricken.

Accordingly, it is hereby

ORDERED, that defendants' motion to strike plaintiffs' Notice to Admit is GRANTED IN ITS ENTIRETY; and it is further

ORDERED, that plaintiffs' Notice to Admit dated August 11, 2025, is hereby STRICKEN AB INITIO; and it is further

ORDERED, that defendants' responses shall not be deemed admissions for any purpose; and it is further

ORDERED, that the parties shall proceed with disclosure exclusively through proper discovery devices authorized by the CPLR.

This constitutes the Decision and Order of the Court.