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.
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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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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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