The errant notice to admit

The Improper Use of Notices to Admit in No-Fault Litigation

Discovery tools in civil litigation serve specific, limited purposes designed to facilitate fair and efficient resolution of disputes. Among these tools, the notice to admit occupies a unique position, intended to streamline trials by eliminating uncontested factual matters and establishing the authenticity of documents. However, parties sometimes attempt to expand this tool beyond its intended scope, using it to establish ultimate facts or conclusory matters that should be determined through substantive evidence at trial.

The boundaries of proper notice to admit usage become particularly important in New York No-Fault Insurance Law cases, where insurance carriers frequently seek to establish coverage defenses through procedural mechanisms rather than trial testimony. These cases often involve disputes about whether insureds or medical providers appeared for Examinations Under Oath (EUOs), with carriers attempting to use discovery devices to prove non-appearance rather than presenting direct evidence through affidavits or testimony.

Understanding the distinction between permissible and impermissible uses of notices to admit is crucial for both plaintiffs and defendants in no-fault litigation. When a notice to admit seeks responses on matters that go to the heart of the controversy, courts will not allow the requesting party to benefit from non-responses, even under circumstances where the opposing party failed to timely object or respond. This protection ensures that critical factual disputes are resolved through proper evidentiary procedures rather than through procedural default.

Case Background

In Metro Health Products, Inc. v State Farm Mutual Automobile Insurance Co., the defendant insurance carrier served a notice to admit on the plaintiff medical provider, seeking admission that the plaintiff failed to appear for scheduled EUOs. When the plaintiff did not timely respond to the notice, State Farm moved for summary judgment dismissing the complaint, relying solely on the notice to admit to establish the plaintiff’s non-appearances as deemed admissions under CPLR rules governing discovery.

The trial court needed to determine whether a notice to admit seeking admission of EUO non-appearance was a proper use of this discovery tool, or whether such a request improperly sought admission of ultimate facts going to the heart of the case. This issue had significant implications for no-fault insurance litigation practice, as it would determine whether carriers could establish critical defenses through procedural default rather than substantive proof.

Jason Tenenbaum’s Analysis

Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51451(U)(App. Term 2d Dept. 2015)

“On March 19, 2012, after plaintiff failed to respond to the notice to admit, defendant moved for summary judgment dismissing the complaint on the ground of plaintiff’s nonappearances at the duly scheduled EUOs, relying solely upon its notice to admit to establish plaintiff’s nonappearances”

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” (DeSilva v Rosenberg, 236 AD2d 508, 508 ; see Williams v City of New York, 125 AD3d 767 ; Priceless Custom Homes, Inc. v O’Neill, 104 AD3d 664 ; Bajaj v General Assur., 18 Misc 3d 25, 27 ). Contrary to defendant’s assertion, its notice to admit went to the heart of the controversy (see Priceless Custom Homes, Inc., 104 AD3d at 664-665; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770 ). Consequently, plaintiff’s failure to timely respond to the notice to admit should not be deemed an admission of the matters stated therein, since the admissions sought by defendant were improper”

You have to wonder whether the Notice to Admit would still work in the Second Department to make a prima facie case?  I am guessing not.  Yet, if a medical provider puts into evidence a denial (as an admission of receipt) and seeks admission of the corresponding bill to the extent it links up to the denial, that would satisfy a prima facie case, in my opinion.

Legal Significance

The Appellate Term’s decision establishes clear boundaries for the permissible scope of notices to admit in New York civil litigation. By holding that requests seeking admission of EUO non-appearance go to the heart of the controversy and therefore constitute improper uses of this discovery device, the court reinforced fundamental principles about how discovery tools should function. Notices to admit are intended only to eliminate peripheral matters from dispute, not to establish the central facts upon which a case turns.

This ruling protects parties from having critical factual disputes resolved through procedural default rather than substantive adjudication. In the no-fault insurance context, whether a party appeared for an EUO directly determines coverage liability - it is the ultimate fact in many coverage disputes. Allowing such ultimate facts to be established through deemed admissions would undermine the adversarial process and potentially deny parties their right to have disputed facts determined through proper evidentiary procedures.

The decision also clarifies that even when a party fails to timely respond to a notice to admit, courts retain discretion to refuse to treat the matters as admitted when the requests were improper from the outset. This principle prevents parties from using procedural mechanisms to obtain unfair tactical advantages and ensures that discovery tools are used for their intended purposes rather than as substitutes for substantive proof.

Practical Implications

For insurance carriers defending no-fault claims, this decision forecloses the use of notices to admit as a primary method for establishing EUO non-appearance defenses. Carriers must instead rely on traditional proof methods including affidavits from examining physicians, testimony from scheduling personnel, and documentation of office practices and procedures for recording no-shows. While notices to admit may still serve useful purposes in establishing peripheral matters like the authenticity of documents or uncontested background facts, they cannot replace substantive evidence on dispositive issues.

Medical providers and plaintiffs benefit from the protection this ruling provides against improper discovery tactics. Even when facing time pressures or administrative challenges that might cause delayed responses to discovery requests, parties need not fear that their failure to respond to an improper notice to admit will result in deemed admissions on critical matters. However, parties should still respond promptly to all discovery requests and object to improper notices to avoid unnecessary motion practice and preserve all available defenses.

Related Articles

• Final order of preclusion became automatic – no need to move for one
• The Fourth Department discusses what constitutes a prima facie case
• Carothers v. Geico: The No-Fault Business Records Showdown
• Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
• New York No-Fault Insurance Law