Key Takeaway
Exploring whether defendants can use Notices to Admit to establish prima facie cases in New York no-fault insurance litigation and departmental differences.
This article is part of our ongoing business records coverage, with 256 published articles analyzing business records issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
This was a comment from Jerry Maline, of Richard Lau’s office, State Farm’s in-house counsel. This is a really astute comment, and got me thinking for a second. Now, just follow me on this to see if my logic makes sense.
According to the Appellate Term, Second Department, Notices to Admit and Interrogatories cannot be used to establish a prima facie case. This is because a party cannot admit the genuineness of another party’s documents, as well as use these devices to establish a complete prima facie case. In practice, this translates to disallowing an insurance carrier to lay a business record foundation for a provider’s bills or an injured person’s bills.
The corollary to this rule is that a medical provider cannot lay a business record foundation for an insurance carrier’s denials.
In contrast to the above, we now have learned that at the Appellate Term, First Department, interrogatories and notices to admit may be used to satisfy a prima facie case, since the genuineness of the bills is not part of a provider’s prima facie case.
Now, in light of the Second Department’s holding in Urban, viz, that a denial does not have to be “in evidence” in order to preserve the defense set forth on the denial, the only factual issue a denial presents is its timeliness. We all know that denials, generally, are mailed on the date set forth on the denial or the next business day. There are some variations out there, but that is the general industry standard. In light of Central Nassau, it would seem that a provider could be charged with having sufficient knowledge to either admit or deny: 1) whether; and/or 2) when the provider received a denial. Like anything else, this tactic will only work if the statements set forth on the Notice to Admit are properly drafted.
Since the only issue relating to an NF-10 at the Appellate Term, Second Department, involves the timeliness of the denial, it would seem to follow that a Notice to Admit can satisfy the underlying procedural issues, and allow the insurance carrier to go forward on its substantive defense. Moreover, since an insurance carrier’s entire prima facie defense does not rest on the timeliness of a denial, it cannot be said that the Notice to Admit would go to the ultimate or heart of the disputed issue. So, an insurance carrier can successfully use this device to demonstrate timely handling, in my opinion.
As for the Appellate Term, First Department, this is an open question. Notwithstanding that Court’s holding that a Notice to Admit may itself satisfy a provider’s prima facie case, that court has never opined as to whether a denial must be in evidence, in order to preserve the defenses that are set forth on it. I would imagine that the Appellate Term, First Department, would probably follow the Presbyterian v. Elrac rule and require that the denial be placed into evidence, before allowing a carrier to go forward on its substantive defenses.
In any event, the Appellate Term, First Department, at worst would only leave unresolved for trial the business record foundation issue involving the denial, besides the substantive defenses. Admittedly, laying a business record foundation is a far easier burden than showing a document was timely mailed.
Thus, a properly drafted notice to admit should resolve the timeliness issue. In the Second Department, this would resolve all issues involving the denial of claim form and allow the carrier to go forward on its substantive defense. In the First Department, this would at a bare minimum eliminate the mailing issue, and possibly leave the business record issue open, as well as the underlying defense to the no-fault claim.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Business Records & Documentary Evidence in New York
The business records exception to the hearsay rule is one of the most important evidentiary foundations in New York litigation. Establishing that a document qualifies as a business record under CPLR 4518 requires showing it was made in the regular course of business, at or near the time of the event, and that it was the regular practice to create such records. In no-fault and personal injury cases, disputes over business records arise constantly — from claim files and medical records to billing documents and mailing logs.
256 published articles in Business records
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Frequently Asked Questions
How are business records used as evidence in no-fault cases?
Business records are critical evidence in no-fault litigation. Under CPLR 4518(a), business records are admissible if made in the regular course of business, at or near the time of the event recorded, and if it was the regular practice of the business to make such records. In no-fault cases, insurers' claim files, mailing logs, denial letters, and EUO/IME scheduling records are frequently offered as business records. The proper foundation must be laid through testimony from a qualified witness or through a certification under CPLR 4518(c).
What types of evidence are important in no-fault and personal injury cases?
Key types of evidence include medical records and bills, police accident reports, diagnostic imaging (MRI, X-ray, CT scans), expert medical opinions, business records from insurance companies and providers, witness statements, photographs of injuries and the accident scene, and employment records for lost wage claims. The rules of evidence under New York CPLR and the Evidence Rules govern what is admissible in court proceedings.
What is the business records exception to hearsay in New York?
Under CPLR 4518(a), a business record is admissible if it was made in the regular course of business, it was the regular course of business to make such a record, and the record was made at or near the time of the event recorded. This exception is crucial in no-fault litigation because insurers' denial letters, claim logs, and peer review reports are often offered as business records. The foundation for the business record must be established through testimony or a certification.
What role does diagnostic imaging play as evidence in injury cases?
Diagnostic imaging — MRIs, CT scans, X-rays, and EMG/NCV studies — provides objective evidence of injuries such as herniated discs, fractures, ligament tears, and nerve damage. Courts and arbitrators give significant weight to imaging evidence because it is less subjective than physical examination findings. In serious injury threshold cases under §5102(d), imaging evidence corroborating clinical findings strengthens the plaintiff's case considerably.
How do New York courts handle surveillance evidence in personal injury cases?
Insurance companies frequently hire investigators to conduct video surveillance of plaintiffs to challenge injury claims. Under CPLR 3101(i), a party must disclose surveillance materials prior to trial, including films, photographs, and videotapes. Surveillance evidence can be powerful for impeachment if it contradicts the plaintiff's testimony about limitations. However, courts may preclude surveillance that was not properly disclosed or that is misleadingly edited.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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