A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51471(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 15, 2006. The order granted defendant’s motion for a protective order striking plaintiff’s notice to admit.

Order modified by providing that defendant’s motion for a protective order is granted only to the extent of striking items 4, 7 and 8 of plaintiff’s notice to admit; as so modified, affirmed without costs, and defendant is directed to respond to items 1, 2, 3, 5 and 6 of the notice to admit within 20 days after service upon it of a copy of the order entered hereon, with notice of entry.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for a protective order striking plaintiff’s notice to admit. The court below granted defendant’s motion in its entirety, and this appeal by plaintiff ensued.

“The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d 537, 537 [2007]). “Through the use of a notice to admit, a party can request another party to admit stated facts or the genuineness of a document, where the party requesting the admission reasonably believes there can be no substantial dispute at the trial. . . and [where the matters] are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry'” (Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007], quoting CPLR 3123 [a]).

In the instant case, the admissions sought by plaintiff in items 1 and 3, regarding the genuineness of defendant’s NF-10 denials, are proper in light of this court’s decision in Bajaj v General Assur. (id.). Similarly, no protective order is necessary with regard to the admissions [*2]sought by plaintiff in items 2, 5 and 6, that there has been no payment made with regard to a particular bill and that defendant received the two claim forms referenced in the attached denials, because these admissions had already been made by defendant in the attached denial of claim forms. In view of the foregoing, it was an improvident exercise of the lower court’s discretion to grant defendant’s motion for a protective order striking items 1, 2, 3, 5 and 6 of plaintiff’s notice to admit.

Item 4, seeking an admission that a sum remains outstanding, is improper in that it is imprecisely worded and could be read as a conclusion of an ultimate fact (see Villa v New York City Hous. Auth., 107 AD2d 619 [1985]). Item 7 seeks an admission that defendant received an attached claim form on or about a specified date, which fact defendant had not previously acknowledged through its issuance of a statutory denial of claim form. In the absence of such prior acknowledgment by defendant, that defendant received such claim form is “an ultimate or conclusory fact which [is] an integral part of the plaintiff’s prima facie case”, and should not be determined on the basis of a notice to admit (Scavuzzo v City of New York, 47 AD3d 793, 795 [2008]; see e.g. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Upon our review of the record and the arguments raised on appeal, we do not find that it was an improvident exercise of the lower court’s discretion to strike item 8 of plaintiff’s notice to admit, seeking an admission that defendant received plaintiff’s assignment of benefits on or about a specified date (see Lolly, 45 AD3d at 537).

Accordingly, we modify the order by providing that defendant’s motion for a protective order is granted only to the extent of striking items 4, 7 and 8 in plaintiff’s notice to admit.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008