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The Rogak Report: 01Apr 2008 ** No Fault - Trial - Prima Facie Case **

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  • Lawrence Rogak
    NOTICE TO ADMIT CANNOT ESTABLISH PRIMA FACIE CASE IN NO-FAULT SUIT NY First Acupuncture PC v. General Assurance Co., 127007 QCV2003 (Civil Court, Queens Co.)
    Message 1 of 1 , Apr 1, 2008


      NY First Acupuncture PC v. General Assurance Co., 127007 QCV2003 (Civil Court, Queens Co.) (Judge William A. Viscovich)

      At the trial of this no-fault suit, neither plaintiff nor defendant insurer called any witnesses. Rather, plaintiff sought to introduce evidence supporting its case solely through a notice to admit pursuant to Section 3123(a) of the CPLR. The notice to admit sought admissions as to various statements contained therein, including acknowledgment by the defendant as to its receipt of the relevant claim forms and bills, and defendant's denial of or failure to pay same. It also sought admissions as to the genuineness of the various documents annexed thereto as well as the contents thereof, to wit, the assignment of benefits to plaintiff, the bills and the NF3 proofs of claim for acupuncture services rendered, the medical necessity of which is the issue at trial.

      The defendant did not deny any of the items contained in the notice. Instead, it served a "Response to Notice To Admit", which objected to each of the requests contained in the notice to admit as "being palpably improper, as it demands Defendant concede many maters that are in dispute or clearly denied, and seeks admission of contested ultimate issues, rather than clear cut matters of fact." The Court held, "This response is insufficient given that the proper method for challenging a notice to admit is to seek a protective order pursuant to CPLR 3123. Nader v. General Motors Corp., 53 Misc 2d 515 (Sup. Ct., N.Y. County) aff'd 29 A.D.2d 632 (1st Dep't. 1967), Epstein v. Consolidated Edison Co., 31 A.D. 2d 746, (2nd Dep't 1969)."

      "As such, Plaintiff argues that the statute requires that the statements and documents contained in its notice should be deemed admitted, thus establishing its prima facie case for entitlement to no-fault payments. Defendant also presented no witnesses but objected to the use of the notice, asserting that the admissions sought therein by plaintiff are improper subjects of a notice in a trial for no fault benefits. Both sides rested with the court reserving decision and requesting counsel for both plaintiff and defendant to submit memoranda of law on this issue."

      "The issues presented for this court's determination are twofold: Should plaintiff's notice to admit and/or the statements and documentary items contained therein be admitted into evidence? If so, are the factual allegations therein deemed admissions by the defendant upon its failure to properly challenge the same, sufficient to establish plaintiff's prima facie entitlement to no-fault benefits?"

      "Notices to admit are provided for in CPLR §3123(a) which provides, in pertinent part, that 'a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents *** described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertainable by him upon reasonable inquiry***'. It is well-settled that a notice to admit is 'a vehicle for resolving and eliminating from contention matters which, though factually relevant, are not really in dispute*** [ but not] to seek admissions of material issues or ultimate or conclusory facts' ( Villa v. New York City Housing Authority, 107 AD 2nd 619, 620 [1st Dept. 1985]; see Taylor v. Blair, 116 AD 2nd 204 [ 1st Dept. 1986 ]; Marine Midland Bank v. Custer, 97 AD 2nd 974 [ 4th Dept. 1983 - aff'd 62 NY 2nd 732] - re: the genuineness of defendant's signature). See also Risucci v. Homayoon, 122 AD 2nd 260 [ 2nd Dept. 1986 ] and Firmes v. Chase Manhattan Automotive Finance Corp., 2008 NY Slip Op. 00449[ 2nd Dept 2008 ]. The sole function of such a notice is to expedite the trial by eliminating from contention that which is public knowledge or easily provable and which the party reasonably believes is not in dispute."

      "Defendant primarily relies on the recent Appellate Term decision in Bajaj v. General Assurance, 18 Misc 3rd 25 [ App. Term, 2nd & 11th Dists. 2007]. There, in reversing the trial court's decision awarding judgment to a no-fault provider based upon items contained in a notice to admit served on the defendant, the Court determined that, although the admissions sought by plaintiff were proper and the genuineness of the denial was deemed admitted, there was no concession as to the admissibility of plaintiff's claim form as a business record under CPLR §4518 so as to constitute proof of the contents therein, such as dates of service, the services rendered and the charges for such services. The Court then went further, holding that even if defendant had deemed admitted the genuineness of the claim form - it still remained plaintiff's burden to proffer evidence in admissible form*** to lay a foundation for the admissibility of the claim form as a business record***."

      "Also supportive of defendant's position is the holding in PDG Psychological v. State Farm, 12 Misc 3rd 1183(A) [ Civil Court, City of New York, Kings Co 2006]), wherein it was held that a provider's notice to admit, to which bills, denial of claim forms and assignment of benefits were attached, was improper in that the admissions sought therein went to the heart of the matter - that is, the prima facie entitlement to no-fault benefits. As such, the notice to admit was determined to be an inappropriate mechanism for the admission of those facts."

      "Taking strong and, in this court's opinion, understandable issue with the above decision is Seaside Medical, PC v. General Assurance Co.,16 Misc 3rd 758 (District Court of Suffolk CO., 1st Dist. 2007), wherein the court opined that based on the logic in the PDG decision, 'no issues whatsoever could ever be the subject of a notice to admit' in a no-fault case. That court went on to find that since none of the eight items in the notice to admit at issue therein (e.g., receipt of claims forms, payment of bills) individually rose to the 'heart of the matter', its use was proper, notwithstanding that collectively they could be dispositive of the action."

      "Also worthy of serious consideration in this matter are the public policy arguments in favor of allowing the use of a notice to admit to prove a plaintiff's case as discussed by Civil Court Judge Thomas D. Raffaele in NY First Acupuncture., P.C., as assignee of Carline Dowdy v. General Assurance Company (Unpublished Opinion, Queens County Civil Court # CV-096709-03). In that matter, Judge Raffaele reluctantly follows the ruling in Bajaj, but then goes on to point out how that rule actually works to protract, rather than to expedite, the overall goals of New York's no-fault system, which are, in sum and substance, to expedite prompt compensation of basic economic losses without regard to fault or negligence... to 'ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists.' Citywide Social Work & PSY Serv PLLC v. Travelers Indemnity Co., New York Law Journal Volume 235, (3/31/06).... It is well established that 'no-fault reform was enacted to provide prompt uncontested, first-party insurance benefits.'  The ruling in Bajaj is simply inconsistent with these policy concerns as its implementation simply extends trial time and expense."

      "Based on the above case law, the court initially finds that the plaintiff's notice to admit was proper in accordance with CPLR §3123 and that defendant's objection to its admission into evidence at trial is overruled."

      "As to whether the notice to admit, together with the allegations contained therein are sufficient to establish plaintiff's prima facie case, this court is disposed to follow the decision and rational of the Seaside decision. That decision, however, was rendered by a lower court, while Bajaj was decided by the Appellate Term. Furthermore, there is no appellate decision in the Second Department regarding notices to admit in no-fault cases which hold contrary to Bajaj. While counsel for Plaintiff argues that 'all four judicial departments have held - and the Court of Appeals has affirmed - a Notice to Admit may be used to establish plaintiff's prima facie case.' (See Use of Notice to Admit in No-Fault Insurance Litigation NYLJ, August 6, 2007), the cases cited therein only seem to hint at such a possibility rather than specifically establishing a precedent which this court could follow."

      "The court also takes notice that counsel for plaintiff... states that 'the Appellate Term (referring to its decision in Bajaj) simply cannot undo the effect of a statutorily created device that dispenses with the need to produce evidence.' While this court may agree with that assertion, it is similarly constrained to act. It is not the place of this court to simply undo and overrule precedents established by the Appellate Term of this Department. Consequently, the Bajaj decision is controlling and this court is compelled to follow it."

      "Therefore, pursuant to Bajaj, the court finds that plaintiff herein has failed to set forth a prima facie case.  Accordingly, the court awards judgment to defendant and the complaint in this action is dismissed."

      Larry Rogak

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