Marigliano v State Farm Mut. Auto Ins. Co. (2006 NY Slip Op 51349(U))

Civil Court, Richmond County

005741/05

Peter P. Sweeney, J.

The plaintiff commenced this action pursuant to Insurance Law § 5101 et seq to recover assigned first-party no-fault benefits for medical service provided to its Assignors, Guillermo Rios and Criselda Rodriquez.

The trial of the action took place on April 12, 2006. Neither party called a witness. To establish a prima facie case, plaintiff relied solely upon defendant’s failure to respond to a notice to admit it was served on November 30, 2005 pursuant to CPLR 3123(a).

The notice to admit requested admissions of the following facts:

1.The defendant received the claim(s) for No-Fault benefits that are the subject of this action.

2.The defendant received the N-F-3 Verification of Treatment Form(s) that are the subject of this action.

3.The defendant received the bill(s) that are the subject of this action.

4. The defendant has not paid the bill(s), claim(s), and/or N-F-3 referenced in 1 through 3 above.

5.The defendant received an Assignment of Benefits Forms(s) for the claims that are the subject of this action.

7.The defendant did not mail requests for verification to the plaintiff for the claims that are the subject of this action.

8.The defendant issued a policy of insurance covering the vehicle plaintiff’s assignor was in at the time of the motor vehicle accident.

Plaintiff did not annex to the notice to admit copies of the bills, claims, and/or N-F-3s and requested and admissions as to their genuineness as CPLR 3123(a) permits. Further, the bills, [*2]claims, and/or N-F-3s were not received in evidence during the trial.

Plaintiff maintained that by failing to respond to the notice to admit, defendant admitted to the truth of all the facts alleged therein and that these facts were sufficient to make out a prima facie case.

Defendant maintained that it was not obligated to respond to the notice to admit since it was vague and ambiguous and sought admissions of ultimate issues of fact. Defendant further maintained that plaintiff was required to introduce the bills, claims, and/or N-F-3s into evidence to make out a prima facie case.

Discussion:

Defendant’s contention that it did not have to respond to the notice to admit is without merit. Plaintiff properly used the notice to admit to dispose of what it believed to be uncontroverted questions of facts which would have been easily provable at trial (The Hawthorne Group, LLC v. RRE Ventures, 7 AD3d 320, 324 [1st Dep’t 2004]; see also Meadowbrook-Richman, Inc. v. Cicchiello, 273 AD2d 6 [1st Dep’t 2000]; Samsung America, Inc. v. Yugoslav Korean Consulting & Trading Co.,199 AD2d 48 [1st Dep’t 1993] ). The notice to admit removed “from the case those uncontested matters which would [have] merely present[ed] a time-consuming burden at trial” (Villa v. New York City Housing Authority, 107 AD2d 619-620 [1st Dep’t 1985] ).

While a party is not obligated to furnish admissions in response to a notice to admit that improperly demands admissions of ultimate and fundamental issues that can only be resolved after a full trial or matters that are in actual dispute (see, Meadowbrook-Richman, Inc. v. Cicchiello 273 AD2d 6, 6; [1st Dep’t 2000]; Orellana v. City of New York, 203 AD2d 542, 543 [2nd Dep’t 1994]; Miller v. Hilman Kelly Co.,177 AD2d 1036, 1037 [4th Dep’t 1991] ), “[a]ll of the items in the notice to admit involve[d] clear-cut factual matters about which one would reasonably anticipate no dispute, and the immediate disposition of which would not unfairly prejudice the defendant and would help to expedite the trial” (Risucci v. Homayoon, 122 AD2d 260, 261 [2nd Dep’t 1986], citing , CPLR 3123[a]; Villa v. New York City Housing Auth., 107 AD2d 619, 620 [1st Dep’t 1985] ). That fact that a notice to admit will establish plaintiff’s prima facie case on paper does not bar its use (id.).

Simply because defendant denied many of the facts alleged in the notice to admit in its answer to plaintiff’s complaint did not establish that those facts were in actual dispute. To hold otherwise would preclude a plaintiff from requesting admissions of any fact initially denied by a defendant in its answer. If defendant actually disputed any of the facts alleged in the notice to admit, it should have submitted a timely response denying them.

The court rejects defendant’s contention that the notice to admit was vague and/or ambiguous.

Inasmuch as defendant did not respond to the notice to admit within 20 days, defendant is deemed to have admitted all of the facts alleged therein (CPLR 3123[a] ).

Notwithstanding the above, the court agrees with defendant that plaintiff did not make out a prima facie case. In A.B. Med. Servs. PLLC v. State Farm Mut. Auto. Ins. Co., 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists], the court held that “[b]y failing to append the necessary claim forms to their motion papers, plaintiffs did not establish their prima facie case” (see, also, Patil v. Countrywide Ins. Co., 2006 NY Slip Op. 50306(U) [App Term, 9th & 10th [*3]Jud Dists]; Maldonado v. Steiner, 2005 NY Slip Op. 51905(U) [App Term, 9th & 10th Jud Dists] ). It necessarily follows that to make out a prima facie case at trial, copies of the NF-3 claim forms or their functional equivalent must be received in evidence for the purpose of demonstrating exactly what was sent to and received by the defendant. In the instant case, neither the N-F-3s nor their functional equivalent were received in evidence nor did plaintiff annex them to the notice to admit and request an admissions as to their genuineness.

Accordingly, it is hereby

ORDERED that judgment be entered in favor of the defendant dismissing the action.

Dated: July 3, 2006_____________________________

PETER P. SWEENEY

Civil Court Judge