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The Rogak Report: 30 Jan 2008 ** No Fault - Notice To Admit **

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  • Lawrence Rogak
    IN 1ST DEPARTMENT, PLAINTIFF CAN MAKE OUT PRIMA FACIE CASE WITH NOTICE TO ADMIT, BUT MUST ATTACH DOCUMENTS Prime Psychological Servs., P.C. a/a/o Anthony
    Message 1 of 1 , Jan 30, 2008
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      IN 1ST DEPARTMENT, PLAINTIFF CAN MAKE OUT PRIMA FACIE CASE WITH NOTICE TO ADMIT, BUT MUST ATTACH DOCUMENTS

      Prime Psychological Servs., P.C. a/a/o  Anthony Montes v. Auto One Ins. Co.
      2008 NY Slip Op 50162(U)
      Decided on January 28, 2008
      Civil Court Of The City Of New York, Bronx County
      Aarons, J.
      Edited by Lawrence N. Rogak


      "Plaintiff commenced this action to recover no-fault first party benefits for unpaid medical services provided to Anthony Montes in the amount of $1,221.04, together with statutory interest, statutory attorney's fees and costs and disbursements. This matter came before this Court for trial on December 7, 2007.   In support of its prima facie case, plaintiff submitted a copy of its summons and complaint, a Notice to Admit and defendant's Responses to the Notice to Admit....  Neither plaintiff nor defendant presented any witnesses nor proffered any other evidence."

      "After review of these Court Exhibits and oral argument the Court ruled that plaintiff had not established a prima facie case and granted defendant's motion for a directed verdict."

      "Due to the fact that it has now become increasing common for plaintiffs seeking to recover no-fault first party benefits to attempt to establish its/their prima facie case at trial through the use of a Notice to Admit and the responses thereto, has resulted in the trial courts being divided on this issue (compare RJ Med., P.C. v. All-State Ins. Co., 15 Misc 3d 1140(A), 841 NYS2d 823 (Civ. Ct., Bronx County, 2007); PDG Psychological, P.C. v. State Farm Mut. Auto Ins. Co., 12 Misc 3d 1183(A), 824 NYS2d 766 (Civ. Ct., Kings County, 2006), with Seaside Med., P.C. v. General Assur. Co., 16 Misc 3d 758, 842 NYS2d 234 (Dist. Ct., Suffolk County, 1st Dist. 2007); New York Massage Therapy P.C. v. State Farm Mut. Ins. Co., 14 Misc 3d 1231(A), 836 NYS2d 494 (Civ. Ct., Kings County, 2006), the Court stated it would issue a formal written Decision/Order addressing the matter."

      "Plaintiff's Notice to Admit asked the defendant to admit the following eleven items:

      1. The defendant received the claims(s) for No-Fault benefits that are the subject of thisaction.

      2. The defendant received the N-F-3 Verification of Treatment Form(s) that are the subjectof this action.

      3. The defendant received the bill(s) that are the subject of this action.

      4. The defendant received Assignment of Benefits Form(s) for the claim(s) that are thesubject of this action.

      5. Annexed hereto are true and accurate copies of the plaintiff's bill(s), claim(s) and/orN-F-3(s) referenced in 1 through 3 above, and the Assignment of Benefits formsreferenced in 4 above.

      6. The defendant received the summons and complaint in this action.

      7. The defendant received plaintiff's bill(s) and/or N-F-3(s) referenced in 1 through 3 above,and the Assignment of Benefits form(s) referenced in 4 above, more than thirty daysbefore the defendant received the summons and complaint in this action.

      8. The defendant has not paid the bill(s), claims(s) and/or N-F-3(s) referenced in 1 through3 above.

      9. The defendant has not paid the bill(s), claims(s) and/or N-F-3(s) referenced in 1 through3 above, in full.

      10. The defendant did not mail requests for verification to the plaintiff for the plaintiff'sbill(s), claims(s) and/or N-F-3(s) referenced in 1 through 3 above.

      11. The defendant issued a policy of insurance covering the vehicle(s) plaintiff's assignor(s)was/were in, or by which the assignor(s) was/were injured, at the time of the underlying motor vehicle accident(s).'

      'Defendant's verified Response to plaintiff's Notice to Admit contained the same verbatim response to each of the eleven questions of the Notice to Admit which reads as follows:'

      'Objection. The Notice to Admit goes to the heart of the matter being litigated and,  as such, is an improper use of a Notice to Admit. The Hawthorne Group, LLC v. RREVentures, et al., 7 AD3d 320, 324 (1st Dep't 2004) and Sagiv v. Gamache, 26 AD3d 368, 369 (2nd Dep't 2006).'

      'Defendant further objects as Plaintiff is asking Defendant to admit the genuineness and authenticity of any documents provided heretofore which is improper as such is exclusively within Plaintiff's knowledge.'

      'CPLR §3123(a) provides, inter alia, as follows:

      'Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.'

      'Here, the defendant neither admitted, denied or set forth a reason why he could not truthfully either admit or deny those matters sought in the Notice to Admit. Unlike requests for written interrogatories where a party is permitted to object and state the reason with reasonable particularity (CPLR§3133 (a)), such a procedure is not authorized with a Notice to Admit (CPLR§3123(a)).  If a party believes that any of the requests for admissions are improper the correct procedure is seek a protective order under CPLR§3103.  Otherwise, they may be deemed be admitted.'

      'Notwithstanding the fact that a party fails to respond to a Notice to Admit or its responses are improper, it is still the function of the court to review the propriety of the Notice to Admit and disregard same if the requests are improper. "

      "The defendant herein contends that the admissions sought by plaintiff in its Notice to Admit are improper because they go to the heart of the matter being litigated. The purpose of a Notice to Admit is to obviate the necessity of producing witnesses to testify at trial pertaining to facts and/or documents where there can be no substantial dispute at the trial and which are within the knowledge of the other party or can be ascertained by him upon reasonable inquiry. CPLR§3123(a). An analysis of plaintiff's Notice to Admit and relevant case law reveals that none of the individual questions for which admissions are sought rise to the level of matters that go to the 'heart of the matter' and consequently the admissions sought by the plaintiff in its Notice to Admit were proper. Bajaj v. General Assurance, 2007 NY Slip Op. 27487 (App. Term, 2nd and 11th Jud. Dists.); General Assur. Co., 16 Misc 3d at 763-767; Marigliano v. State Farm Mut. Auto Ins. Co., 12 Misc 3d 1180(A), 824 NYS2d 764 (Civ. Ct., Richmond County, 2006); State Farm Mut. Ins. Co., 836 NYS2d at 494."

      "Notwithstanding that the admissions sought by the plaintiff in its Notice to Admit were proper, the plaintiff by failing to append the documents it specifically stated were attached to its Notice to Admit, did not establish its prima facie case. State Farm Mut. Auto Ins. Co. 824 NYS2d at 764."

      "Parenthetically, the Court notes that the issue in no-fault health care provider case of whether use solely of a Notice to Admit and/or a defendant's responses or lack thereto can establish a prima facie case has resulted in an apparent split of authority between the Appellate Term, 2nd and 11th Jud. Dists., and the Appellate Term, 1st Department. The Appellate Term, 2nd and 11th Jud. Dist., has unequivocally held in Bajaj that a Notice to Admit by itself is insufficient to establish a prima facie case and that a health care provider was required to tender evidentiary proof of the transaction sued upon in admissible form. However, the Appellate Term, 1st Dept., in Fair Price Med. Supply, Inc. v. St. Paul Travelers Ins. Co., 16 Misc 3d 8, 838 NYS2d 848 (2007), sustained a plaintiff's prima facie case at trial based solely on defendant's responses to plaintiff's demand for verified written interrogatories. Unlike Bajaj, Fair Price did not require the submission of evidentiary proof of the transaction sued upon."

      "Accordingly, in this department it appears, based upon Fair Price, that a plaintiff can establish solely through the use of a Notice to Admit and/or a defendant's responses thereto a prima facie case."

      "For the reasons stated above, plaintiff had not established a prima facie case, defendant's motion for a directed verdict is granted and plaintiff's complaint is dismissed." 

      Comment: And so, for now, the status of the practice of proving a prima facie no-fault case via Notice to Admit is that it can be done in New York and Bronx counties, but not in Richmond, Queens, Kings, Nassau, and Suffolk -- and that although it can be done in the First Department, copies of the relevant documents must be annexed to the Notice to Admit in order for it to be effective.

      Larry Rogak

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