Central Nassau Diagnostic Imaging, P.C. v GEICO, 2010 NY Slip Op 20244 (App.Term 1st Dept. 2010)
I am going to annotate this opinion –
Here is the synopsis of the argument:
“On appeal, defendant argues that plaintiff could not rely upon defendant’s admissions resulting from its failure to respond to the notice to admit to establish plaintiff’s prima facie case. Defendant maintains that, notwithstanding the factual admissions resulting from its failure to respond to the notice to admit, plaintiff was required to call witnesses at trial to lay a foundation for the admission into evidence of the bills. Because plaintiff did not call any trial witnesses, defendant asserts that the complaint should have been dismissed, as plaintiff failed to establish entitlement to recover the assigned no-fault benefits. We disagree, and affirm.”
Here is the holding:
“[p]laintiff’s requests for admissions were appropriate and defendant, by failing to respond to the notice to admit or seek other appropriate relief, is deemed to have admitted the facts on which plaintiff sought admissions. Because defendant admitted that the two bills attached to the notice were “true and accurate” copies of the bills received by defendant and that defendant has not paid those bills, plaintiff established its entitlement to recover the overdue assigned first-party no-fault benefits (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).”
The final nail in the coffin from this court:
“Our conclusion that a plaintiff-provider can use admissions obtained through a notice to admit to establish its entitlement to recover overdue assigned first-party no-fault benefits is consonant with the purposes underlying the No-Fault Law, which “were 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” (Medical Socy. of State v Serio, 100 NY2d 854, 860 [2003]), as well as case law [*3]allowing a plaintiff-provider to establish its entitlement to such benefits based on admissions obtained from a defendant-insurer on interrogatories (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]).”
The Appellate Term, Second Department gets slighted:
“To the extent Bajaj v Gen. Assur. (18 Misc 3d 25 [2007]) can be read to support a contrary result, we decline to follow it.”
My thoughts:
Why would a plaintiff stipulate to anything if an unanswered notice to admit or Interrogatory #18 of a famous law firm’s discovery package is completely answered?
Admittedly, I suppose this decision makes sense and is correct on the law as Appellate Division authority exists right now. As a practitioner, it just seems crazy that a provider can mail a piece of paper – it probably can even be a boulder that Fred Flintstone chizzled into – wave a wand and make its case through the statutorily mandated duties of an insurance carrier. Blame the Appellate Division for this result.
But, I have to laugh at how allowing a medical provider to meet its prima facie case without calling a witness or relying on an insurance carrier’s admissions: “[r]educe[s] the burden on the courts and to provide substantial premium savings to New York motorists”. It looks like the author of this per curiam opinion decided to hurl some of the left over salt from the stockpiles that New York City has at the conclusion of the winter season at Geico’s counsel’s open wounds.
ONE MORE THING
I was informed last night that I was actually referencing “interrogatory #8”, see supra. I said “18”. And yes, I have received many motions over the years explaining how my response to this famous interrogatory was deficient.
9 Responses
It’s interrogatory #8 by the way.
Thank you. I wanted to see if anyone knew what I was talking about!!
Know it? I wrote it.
By the way – this is the famous Interrog #8.
QUESTION 8. State whether the Defendant received the bill and supporting documentation, which is referred to and annexed with the complaint in the instant action.
(a) If so, state the date the bill was received.
(b) State whether the bill has been paid, including the amount of such payment
(c) If a partial payment or no payment was issued, state the reason for such.
Mr. Famous – Let me see how well you really know the dynamics behind interrog #8. Historically, what has been my response when it is alleged that my answer to this interrogatory is deficient?
Come on now. The function of a Notice to Admit is clearly written in the CPLR which is statutory law. Stop lamenting when a court does what the legislature mandates that it do.
Baja is ridiculous. Business records which the App Term could care less about as witnessed by recent decisions and formal judicial admissions have nothing in common. Let’s make this one up. The App Term 2nd would block every attempt for leave to appeal a notice to admit decision to the 2nd Dep’t because it knows that the law would be applied.
What are you going to do when you get into a real court on a real case.
Stop being a insurance attorney and be an attorney for goodness sake.
Ray, what did I do to deserve that comment? I surely did not go on a tirade about how unfair Central Nassau was, and how Bajaj was the correct statement of law. I only lament about the respective burdens of proof, when New York is compared to every other PIP jurisdiction. Yet, in light of what the Appellate Divisions have held a prima facie case to be, I tend to believe Central Nassau is correct.
I have tried plenty of real cases, as I believe you put it. I also have a general litigation practice. So, you should probably do some research before you start throwing barbs at me.
You can’t sue for minor injuries. So bills are supposed to be paid promptly. That’s the rationale behind the burdens. I know there’s plenty of fraud. I know better then anyone else. I prosecuted it.
But there’s plenty of denials just to get out of paying. Do you want me to give illustrative examples. I will be doing that soon anyway. I’ll shoot you an advanced copy. Think of Katrina and the customers of that certain insurance company that were not walking on sunshine.
Why not make it ultra difficult to collect on a claim and watch the denials sky rocket. (See App Term 2nd)
To see the law twisted by this bane called No Fault just disgusts me. Sorry if I lose it. You are a good guy.
Let’s get rid of No Fault. I say it’s a tax that goes directly to insurance companies. Many say its rife with fraud and I agree. Get rid of it instead of screwing up the law and the rules of evidence that were crafted by men of much greater intelligence then us. Evidence is beautiful.
Insurance companies will not support that because no fault is profitable on both ends. Take the premium and deny the claim and get suits thrown out on threshold. Fraud is their justification.
But I say get rid of it even though I make money from it because it is the right thing to do.
25k auto accident policy cases are not real.
You try trying a case wherein a police officer shoots into a crowd and hits a kid on basketball scholarship and ends his career. (the expert says he had a good shot at the pros) While in school playing basketball he helped support his mother by running up and down the steps of the garden selling pretzels and soda. A kid that never did a bad thing his whole life. Walk in front of a Brooklyn Jury a month after Diallo and then talk to me about trying a case.
But in the meantime I am sorry.
I continue to assert that more consistent decisions in No-Fault litigation could be obtained through the use of a Magic 8-ball than through the current arrangements.
Only a comedy-writing team on the par of Larry David and Mel Brooks could have come up with a “Unified Court System” in which the rules vary widely from county to county.
Why don’t Defendant’s start to use the Notice to Admit to establish their Primae Facie? Am I missing something?