By: Robyn M. Brilliant
As the case law in the area of no-fault litigation is constantly changing, there is a new hot topic dividing the courts. The use of notices to admit and interrogatories in proving plaintiff’s prima facie case has become increasingly popular and has generated decisions with varying results in the lower courts as well as in the appellate courts.
It is well settled that a plaintiff medical provider establishes a prima facie case for first party nofault benefits by submitting proof that it submitted the claim, setting forth the fact and the amount of loss sustained, and that payment of no-fault benefits was overdue. Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742 (N.Y. App. Div. 2d Dept. 2004).
Insurance Department Regulation 11 N.Y.C.R.R. 65-3.8(a)(1) defines “overdue” benefits as those “not paid within 30 calendar days after the insurer receives proof of claim.” Insurance Law 5106(a) similarly defines “overdue” benefits as those “not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” Citing these sections, the Court of Appeals has also recognized that “[f]ailure to pay benefits within the 30-day requirement renders benefits overdue.” Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 N.Y.2d 274, 660 N.Y.S.2d 536, 537 (1997).
In Nyack Hospital v. GMAC, 27 A.D.3d 96, 808 N.Y.S.2d 399, 402, 2005 N.Y. Slip Op 10107 (2nd Dept. 2005), aff’d as mod., 8 N.Y.3d 294 (2007), the Court stated that “no-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim.” The burden then shifts to the defendant insurer to establish any properly and timely preserved defenses.
It has become increasingly common for plaintiff medical providers to attempt to establish their prima facie case at the time of trial through the use of defendant’s interrogatory responses and responses to notices to admit (or lack of response thereto) thereby dispensing with the necessity of producing a witness.
This issue has resulted in a split of authority between the First and Second departments. The recent decisions from the Appellate Term, Second Department, have found that a notice to admit by itself is insufficient to establish a plaintiff’s prima facie case and therefore it is plaintiff’s burden to lay a sufficient foundation to establish that the claim form is admissible as a business record exception to the hearsay rule to prove the truth of the matters asserted therein.
The First Department has declined to follow the Second Department stating that a plaintiff can establish its prima facie case through the use of a notice to admit or defendant’s interrogatory responses and therefore a witness is not required to be produced.
It is now common practice for plaintiffs and defendants in no-fault cases to “stip out” the issues that the plaintiff timely mailed and the defendant received the bills at issue; that the insurer timely mailed its denial(s) and that its respective documents shall be admitted into evidence without objection. This benefits both sides in that (1) the plaintiff does not have to produce a witness who has personal knowledge that the bills were timely mailed; (2) the defendant does not have to produce a claims adjuster who has personal knowledge that the denials were timely mailed and (3) the issue of establishing its documents as business records is eliminated.
However, as a result of recent case law, in the First Department, a plaintiff who can prove its prima facie case without producing a witness may have no incentive to enter into a stipulation, thereby leaving the defendant with the burden of producing a witness to prove that its denial was timely mailed and admissible as a business record exception to the hearsay rule.
Interrogatories are written questions drawn by one party and answered by another party under oath. CPLR 3133(b). W. Tremont Med. Diagnostics v. AutoOne Ins. Co., 2008 N.Y. Misc. LEXIS 1174 (N.Y. Civ. Ct. 2008).
Answers to interrogatories may be used to the same extent as the depositions of a party (CPLR 3131). Matters contained in depositions and interrogatory answers constitute hearsay, except in those circumstances where answers to interrogatories are introduced by the adverse party as an exception to the hearsay rule. CPLR 3117(a)(2).
A notice to admit is a discovery tool used to expedite a trial by eliminating the need to prove undisputed facts. A party can serve a notice to admit on any other party requesting it admit the truth of any matters of fact set forth in the request 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.
Copies of the documents must be served with the request unless already furnished. CPLR 3123(a). If a party fails to respond to a notice to admit within twenty (20) days after service, the matters therein are deemed admitted for the purpose of the pending litigation.
While an interrogatory may be used to unearth any relevant subject, a notice to admit may not be used to seek answers to material issues to be resolved at trial. RJ Med., P.C. v. All-State Ins. Co., 15 Misc.3d 1140(A), 841 N.Y.S.2d 823, 2007 NY Slip Op 51061U (N.Y. Civ. Ct. 2007).
Furthermore, while a party is permitted to object to a written interrogatory and provide a reason with reasonable particularity, such a procedure is not permitted with a notice to admit.
The proper method of challenging a notice to admit is to seek a protective order pursuant to CPLR 3103. Prime Psychological Servs., P.C. v. Auto One Ins. Co., 14 Misc.3d 1122 (A), 859 N.Y.S.2d 898, 2008 NY Slip Op 50162U (N.Y. Civ. Ct. 2008). An interrogatory and response to notice to admit must be given under oath. See, CPLR 3133(b) and CPLR 3123(a).
A matter deemed admitted pursuant to a notice to admit is still subject to all pertinent objections to admissibility which may be interposed at the trial (CPLR 3123(b)), and it is not necessarily of such probative value as to relieve a party of the necessity of establishing its right to ultimate relief upon the trial. Bajaj v. General Assur., 18 Misc.3d 25, 852 N.Y.S.2d 576, 2007 NY Slip Op 27487 (N.Y. App. Term 2nd Dept. 2007).
In PDG Psychological, P.C. v. State Farm Ins. Co., 12 Misc. 3d 1183(A), 824 N.Y.S.2d 766 (N.Y. City Civ. Ct. 2006), the court held that since the plaintiff’s notice to admit and the documents attached thereto went to the heart of the matter, it could not be used to prove plaintiff’s prima facie case.
Similarly, the court in RJ Med., P.C. v. All-State Ins. Co., 15 Misc.3d 1140(A), 841 N.Y.S.2d 823, 2007 NY Slip Op 51061U (N.Y. Civ. Ct. 2007), held that the requested admissions were of material issue at the time of trial and went to the heart of the matter, and the court in NY First Acupuncture, P.C. v. General Assur. Co., 19 Misc. 3d 1117(A), 2008 WL 958020 (N.Y. City Civ. Ct. 2008), reluctantly followed the Appellate Term precedent of Bajaj.
In contrast, the court in Prime Psychological Servs., P.C. v. Auto One Ins. Co., 859 N.Y.S.2d 898, 2008 NY Slip Op 50162U (N.Y. Civ. Ct. 2008), found that although none of the admissions sought went to the heart of the matter and were, therefore, proper, since the plaintiff failed to attach the documents specifically stated were attached, the plaintiff failed to establish its prima facie case.
The court in Seaside Med., P.C. v. General Assur. Co., 16 Misc.3d 758, 842 N.Y.S.2d 234, 2007 NY Slip Op 27258 (N.Y. Dist. Ct. 2007), found that none of the requested items in the notice to admit individually rose to the heart of the matter, and its use was proper, notwithstanding that collectively they could be dispositive of the action.
The Appellate Term, First Department, has taken the position that defendant’s verified interrogatory responses are admissions and therefore sufficient to establish plaintiff’s prima facie case. Fair Price Med. Supply Inc. v. St. Paul Travelers Ins. Co., 16 Misc.3d 8, 838 N.Y.S.2d 848, 2007 NY Slip Op 27173 (N.Y. App. Term 1st Dept. 2007).
Having admitted receipt of plaintiff’s claims for no-fault first party benefits, defendants may not now be heard to argue that plaintiff failed to establish the claims were mailed and received. P.L.P. Acupuncture, P.C. v. Travelers Indem. Co., 19 Misc.3d 126(A), 859 N.Y.S.2d 905, 2008 NY Slip Op 50484U (N.Y. App. Term 1st Dept. 2008).
However, the recent decisions of the Appellate Term, Second Department, have held to the contrary. In Empire State Psychological Servs., P.C. v. Travelers Ins. Co., 13 Misc.3d 131(A), 824 N.Y.S.2d 753, 2006 NY Slip Op 51869U (N.Y. App. Term 2nd Dept. 2006), the plaintiff’s only proof at trial was defendant’s responses to written interrogatories wherein the defendant admitted that it received plaintiff’s claim and that it denied said claim based upon lack of medical necessity.
The court held that this response did not establish plaintiff’s prima facie case. Defendant’s admission of receipt of a document called a claim form did not concede that plaintiff’s claim form was admissible as a business record pursuant to CPLR 4518 so as to constitute proof of the transactions set forth therein. See Bajaj, supra.
In Bajaj, the court reiterated its position holding that it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by introducing into evidence the claim form in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form as a business record.
Even had defendant admitted pursuant to CPLR 3123 the genuineness of the provider’s claim form which it received, this would not concede the facts set forth on the claim form with respect to the dates of service, the services rendered and the charges therefore. The admission would only serve to acknowledge that this was the form that was received. Id.
In Custom Orthotics of NY Inc. v. State Farm Mut. Auto Ins. Co., 18 Misc.3d 797, 849 N.Y.S.2d 876, 2007 NY Slip Op 27549 (N.Y. Dist. Ct. 2007), the plaintiff rested after introducing the notice to admit and other documents and no witnesses testified. The insurer admitted receipt of the bills at issue but specifically reserved the right to object to their validity at trial. The defendant also admitted that it did not pay the bills at issue but “only to the extent that no payment is due and owing.”
The court dismissed the case finding that the formalities surrounding the introduction of business records into evidence had to be observed. It noted that in this case, although the defendant admitted certain facts, it “pointedly” reserved its right to challenge the validity of plaintiff’s documentary evidence at trial. It could not be said that the plaintiff’s ability to establish a prima facie case was not “hotly contested.” Id.
The Appellate Term, Second Department, recently affirmed its position in Psychmetrics Med., P.C. v. Travelers Ins. Co., 21 Misc.3d 144(A), 2008 NY Slip Op 52466U (N.Y. App. Term 2nd Dept. Dec. 4, 2008) (plaintiff, by not calling a witness, and relying on defendant’s response to its notice to admit, failed to demonstrate that its claim form was admissible as a business record); All Mental Care Med., P.C. v. State Farm Mut. Ins. Co., 2009 NY Slip Op 50042U, 2009 N.Y. Misc. LEXIS 49 (N.Y. App. Term 2nd Dept. Jan. 9, 2009) (plaintiff, by only offering a notice to admit and affirmation made by defendant’s attorney failed to prove its prima facie case by not producing a witness); V.S. Med. Servs., P.C. v. Travelers Ins. Co., 2009 NY Slip Op 50048U (N.Y. App. Term 2nd Dept. Jan. 9, 2009) (plaintiff, by producing a witness that testified regarding the claim forms at issue, but not as to the generation of such forms, failed to establish its admissibility as business records).
Similarly, in Vista Surgical Supplies Inc. v. State Farm Mut. Ins. Co., 22 Misc.3d 128(A), 2009 NY Slip Op 50047U (N.Y. App. Term 2nd Dept. Jan. 9, 2009), the court held that an admission that defendant received plaintiff’s claim forms is not a concession of the facts set forth in said claim form.
Although the defendant acknowledged that it received the claim form at issue and that a true copy was annexed to the notice to admit, it remained plaintiff’s burden to lay a sufficient foundation to establish that the claim form is admissible as a business record exception to the hearsay rule to prove the truth of the matters asserted therein. Id.It is clear that the courts are not only divided as to the validity of notices to admit and interrogatories as a means for the plaintiff to prove its prima facie case, but as to whether the statements requested to be admitted in a notice to admit go to the “heart of the matter.”Unless the Court of Appeals provides more guidance on these issues, it appears that this will be just another topic in the no-fault arena that will continue to generate diverse decisions.
ROBYN M. BRILLIANT is a solo practitioner in Manhattan practicing in the areas of no-fault law and personal injury. Attorney SUSAN NUDELMAN and legal assistant ADRIENNE TRAUBENIK-SALVO assisted in the preparation of this article.
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