Third Department Reverses Supreme Court, Broome County: Admission of Fact Against Interest in Pleadings Does Not Lose Its Effect After Subsequent Amendment Withdrawing Admission

In Kwiecinski v Chung Hwang 2009 NY Slip Op 06630 defendant medical practitioners and medical group sought to amend their answer and prevent plaintiff from using an admission made by the defendants in their answer. That motion to amend was granted by the trial court and it was further ordered that the plaintiff was precluded from further use of the admission. On appeal, plaintiff successfully sought reversal of the order precluding her use of the earlier admission in the original answer.

Plaintiff had commenced the action seeking damages for professional negligence of defendants in failing to give the proper medication prior to surgery, including this allegation in her pleading:

"was supposed to receive Versed prior to the surgery. Instead, due to negligence, gross negligence and recklessness of defendant[s], plaintiff was given a paralytic agent. 
 
Defendants seemingly made an admission against interest in their answer, in their motion to seek to amend it:

"as to the allegations as contained in paragraph numbered '23' of the . . . [c]omplaint, admit the first two sentences and deny knowledge or information sufficient to form a belief as to the remaining allegations." Defendants thereafter moved for permission to amend their answer, claiming that the admission of the facts contained in the first two sentences of paragraph 23 of plaintiff's complaint was inadvertent, and for an order precluding plaintiff from using the original admission in further proceedings in this action. Supreme Court granted the motion to amend the answer and ordered that plaintiff or any other party may not use the admission in the original answer at any stage of the litigation.

Third Department held:

Plaintiff contends that Supreme Court erred in precluding the use of defendants' admission in their original answer. We agree. "An admission of fact in an original pleading does not lose its effect as an admission of fact because the pleading has been superceded as such by an amended pleading" (Ranken v Probey, 136 App Div 134, 135 [1909]; see Resseguie v Adams, 55 AD2d 698, 699 [1976], affd sub nom. Locator-Map, Inc. v Adams, 42 NY2d 1022 [1977]; Ogilvie v City of New York, 44 AD2d 586, 586 [1974]; Arinsky v Arsinskiy, 280 App Div 820, 820 [1952]; Polakoff v Hill, 261 App Div 777, 780 [1941]; McNulty v Zaganos, 255 App Div 274, 275 [1938]; Jarnvagsstyrelsen v Dexter & Carpenter, Inc., 32 F2d 195, 198 [2d Cir 1932], cert denied 280 US 579 [1929]). As a result, admissions in an original pleading superceded by an amended pleading "are still evidence of the facts admitted" (Resseguie v Adams, 55 AD2d at 699). The circumstances surrounding the original admissions and the amendment may be explained at trial, however, and the weight afforded the original admissions is to be determined by the factfinder (see Bogoni v Friedlander, 197 AD2d 281, 292-293 [1994]; Arinsky v Arsinskiy, 280 App Div at 820). As the admissions in the original answer survive the amended answer (see Arinsky v Arsinskiy, 280 App Div at 820), we conclude that Supreme Court erred in precluding defendants' admissions in their original answer.