Meridan Health Acupuncture, P.C. v Auto One Ins. Co. (2010 NY Slip Op 51263(U))

District Court of Suffolk County, Third District

HUC 1503/2007

Rapuzzi, Palumbo & Rosenberger, P.C.

Jason Moroff, Esq.

Attorney for the Plaintiff

3361 Park Avenue

Wantagh, New York 11793

Bruno, Gerbino & Soriano, Llp

Adam D. Levine, Esq.

Attorney for the Defendant

445 broad Hollow road, Suite 220

Melville, New York 11747

C. Stephen Hackeling, J.

At a trial of the above captioned medical service provider “no-fault” action conducted June 17, 2010, neither side presented witnesses. Instead the plaintiff offered into evidence a Notice to Admit dated May 12, 2010 which asked the defendant to admit it received the attached claim and assignment for no-fault medical provider services for $3,485.00, that no verification of information was requested, and that payment was not made thereon. Thereafter, the plaintiff rested asserting the establishment of a prima facie cause of action pursuant to NY Ins. Law § 5106(a). The defendant asserts that the plaintiff cannot avail itself of the statutory NY CPLR 3123 admissions as it did respond to same. The defendant’s response to the Notice to Admit contained the same verbatim response to each of the forty questions which reads: “Defendant can [*2]neither admit nor deny this matter as it pertains to a material issue of fact that can only be resolved at the time of trial, and is therefore not the proper subject of a Notice to Admit.” It is the defendant’s contention that it need not produce a witness to establish its affirmative defense of lack of medical necessity as the plaintiff has not carried its burden of establishing a prima facie cause of action.

It is noted that the Appellate Courts are split on the availability of Notices to Admit to establish a medical provider no fault insurance claim. This court has previously decided that the Notice to Admit could be used to establish a NY Ins. Law § 5106(a) prima facie cause of action. Advanced Tempromandibular Disorder & Dental Surgery v. Progressive Northeastern Ins. Co., 27 Misc 3d 436 (Suf. Co. Dist. Ct. 2010) 896 NYS2d 830. Subsequent to that decision, the Appellate term of the Supreme Court, First Department has allowed no fault plaintiffs to establish their prima facie case via Sec. 3123 admissions and expressly found that facts such as receipt of a claim and the failure to respond or pay within 30 days were not legal conclusions which constitute inappropriate requests to admit. Central Nassau Diagnostic Imaging, P.C. v. Geico., 2010 NY Slip Op 20244 (App. Term, 1st Dept., 2010).

The plaintiff in this action seeks to push the envelope one step further by asking for a finding that a written timely inappropriate response similarly constitutes a statutory admission sufficient to establish a prima facie case without the need to call a witness.

The Notice to Admit is a procedural device used to narrow the disputed issues to be addressed at trial. See Hodes v. City of New York I, 165 AD2d 168, 566 NYS2d 611 (App. Div. 1st Dept. 1991). If a party declines to do anything in response to the Notice to Admit, the requested admissions are deemed admitted. The proper response as per CPLR Sec. 3123 is either an admission, a denial, or ” if the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation such party may, in lieu of a denial or statement, serve a sworn statement setting forth in detail his claim..”^[FN1] Unlike requests for written interrogatories where a party is permitted to object in lieu of responding (CPLR 3133 (a)), such a procedure is not authorized with a Notice to Admit. See Webb v. Tire and Brake Distributor, Inc., 13 AD3d 835, 786 NYS2d 636 (NYAD 3rd Dept. 2004), cited in Prime Psychological Serv. P.C. v. Auto One Insurance Co.,18 Misc 3d 1122(A) (NY Civ. Ct. 2008). If there is a request for an improper admission, the correct procedure is to seek a protective order, pursuant CPLR § 3103. See Saqiv v. Gamache, 26 AD3d 368 (N.Y.A.D. 2nd Dept. 2006).

The plaintiff s Notice to Admit has established its prima facie case that; (1) necessary billing documents were mailed to and received by insurer, and (2) that the payments of no-fault benefits was overdue. New York Insurance Law § 5106; See Countrywide Ins. Co. v. 563 Grand Medical, P.C., 50 AD3d 313 (NY AD 1st Dept. 2008). As the defendant has presented no testimony or alternative evidence to rebut the plaintiff’s case, this Court must enter judgment for [*3]the plaintiff in the sum of $3,485.00. The plaintiff shall settle judgment plus appropriate costs, interest and attorneys fees upon twenty (20) days notice.

___________________________

J.D.C.

Dated: June 23, 2010

Footnotes

Footnote 1: The assertion that a fact is too “material” to be admitted or denied does not qualify for this sworn “explanation” exemption.