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The Rogak Report: 12 July 2006 ** Civil Procedure - Notice to Admit **

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  • Lawrence Rogak
    PLAINTIFF ALMOST WINS AT TRIAL DUE TO DEFENDANT S FAILURE TO RESPOND TO NOTICE TO ADMIT Adam Marigliano LMT a/a/o Guillermo Rios and Criselda Rodriquez v.
    Message 1 of 1 , Jul 12, 2006
    • 0 Attachment
      PLAINTIFF ALMOST WINS AT TRIAL DUE TO DEFENDANT'S FAILURE TO RESPOND
      TO NOTICE TO ADMIT

      Adam Marigliano LMT a/a/o Guillermo Rios and Criselda Rodriquez v.
      State Farm Mut. Auto Ins. Co., (Civil Court, Richmond County)
      (SWEENEY, j) (index no. 005741/05) (2006 NY Slip Op 51349)
      Decided on July 3, 2006

      The trial of this no-fault benefits suit took place on April 12,
      2006. Neither party called a witness. To establish a prima facie
      case, plaintiff relied solely upon defendant's failure to respond to
      a notice to admit which was served on November 30, 2005 pursuant to
      CPLR 3123(a).

      The notice to admit requested admissions of the following facts:

      1.The defendant received the claim(s) for No-Fault benefits that are
      the subject of this action.

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

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

      4. The defendant has not paid the bill(s), claim(s), and/or N-F-3
      referenced in 1 through 3 above.

      5.The defendant received an Assignment of Benefits Forms(s) for the
      claims that are the subject of this action.

      7.The defendant did not mail requests for verification to the
      plaintiff for the claims that are the subject of this action.

      8.The defendant issued a policy of insurance covering the vehicle
      plaintiff's assignor was in at the time of the motor vehicle
      accident.

      Plaintiff did not annex to the notice to admit copies of the bills,
      claims, and/or N-F-3s and requested admissions as to their
      genuineness as CPLR 3123(a) permits. Further, the bills, claims,
      and/or N-F-3s were not introduced into evidence during the trial.

      Plaintiff maintained that by failing to respond to the notice to
      admit, defendant admitted to the truth of all the facts alleged
      therein and that these facts were sufficient to make out a prima
      facie case.

      Defendant maintained that it was not obligated to respond to the
      notice to admit since it was vague and ambiguous and sought
      admissions of ultimate issues of fact. Defendant further maintained
      that plaintiff was required to introduce the bills, claims, and/or N-
      F-3s into evidence to make out a prima facie case.

      The Court held that "Defendant's contention that it did not have to
      respond to the notice to admit is without merit. Plaintiff properly
      used the notice to admit to dispose of what it believed to be
      uncontroverted questions of facts which would have been easily
      provable at trial. The notice to admit removed from the case those
      uncontested matters which would have merely presented a time-
      consuming burden at trial."

      "While a party is not obligated to furnish admissions in response to
      a notice to admit that improperly demands admissions of ultimate and
      fundamental issues that can only be resolved after a full trial or
      matters that are in actual dispute, all of the items in the notice to
      admit involved clear-cut factual matters about which one would
      reasonably anticipate no dispute, and the immediate disposition of
      which would not unfairly prejudice the defendant and would help to
      expedite the trial. That fact that a notice to admit will establish
      plaintiff's prima facie case on paper does not bar its use."

      "Simply because defendant denied many of the facts alleged in the
      notice to admit in its answer to plaintiff's complaint did not
      establish that those facts were in actual dispute. To hold otherwise
      would preclude a plaintiff from requesting admissions of any fact
      initially denied by a defendant in its answer. If defendant actually
      disputed any of the facts alleged in the notice to admit, it should
      have submitted a timely response denying them."

      "The court rejects defendant's contention that the notice to admit
      was vague and/or ambiguous."

      "Inasmuch as defendant did not respond to the notice to admit within
      20 days, defendant is deemed to have admitted all of the facts
      alleged therein (CPLR 3123[a])."

      "Notwithstanding the above, the court agrees with defendant that
      plaintiff did not make out a prima facie case. In A.B. Med. Servs.
      PLLC v. State Farm Mut. Auto. Ins. Co., 2005 NY Slip Op 50432[U] [App
      Term, 2d & 11th Jud Dists], the court held that 'by failing to append
      the necessary claim forms to their motion papers, plaintiffs did not
      establish their prima facie case.' It necessarily follows that to
      make out a prima facie case at trial, copies of the NF-3 claim forms
      or their functional equivalent must be received in evidence for the
      purpose of demonstrating exactly what was sent to and received by the
      defendant. In the instant case, neither the N-F-3s nor their
      functional equivalent were received in evidence nor did plaintiff
      annex them to the notice to admit and request an admissions as to
      their genuineness."

      "Accordingly, it is hereby ORDERED that judgment be entered in favor
      of the defendant dismissing the action."

      Comment: The plaintiff in this case managed to snatch defeat from the
      jaws of victory, and vice-versa for State Farm. State Farm's failure
      to respond to the Notice to Admit would have been fatal, except for
      the fact that plaintiff's attorneys neglected to attach copies of the
      relevant documents to their Notice to Admit (which was kinda dumb, to
      tell you the truth. If you're going to ask your adversary to admit
      to the genuineness of a document, attach a copy to your demand. D-
      uh?). Next time a plaintiff sends a Notice to Admit and is savvy
      enough to attach its proof of claim documents, the defense attorney
      had better send back an objection OR at the very least, don't base
      your trial strategy solely upon the prima facie case!

      Larry Rogak
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