The Appellate Term seems to have held that Defendant’s denial does not, by itself, prove Plaintiff’s prima facie case in it’s entirety. In that recently decided case, the court writes:
To the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do (see Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra). As a result, plaintiff’s motion for summary judgment should have been denied.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NYSlipOp 26483 (App. Term. 2nd and 11th).
Obviously, Plaintiff’s are not likely to agree with this decision. A denial contains all of the relevant information (as far as prima facie goes); it has the amount in dispute, and is an admission that bills have been received (otherwise a denial would be meaningless) and the fact that the claim was actually denied is proof that it is overdue. Once the denial is in evidence or attached as an exhibit, nothing else is necessary (provided the denial is proper and has that information).
If there was some issue regarding the bills verification should be requested prior to a denial being issued. If not, then defendant loses the right to complain about those bills. Even if they do retain that right because it’s mentioned in their denial, it still remains their burden to prove that there was some defect. Once they have issued a denial the fact bills were received is beyond dispute, along with the services billed for (insofar as those were the services billed for and not that they were necessary or that the services were actually provided).
Requiring the claims forms as an exhibit in motion papers or evidence at trial is unnecessary and seemingly contrary to the spirit of the no-fault regulations.
The opinion still allows that the denial cures any defect with respect to the submission of the claim forms, a ruling that continues to be the bane of many a Defense attorney.
To be sure, Defense attorneys will disagree and they are welcome to post their opinions. I will post Defense arguments as they come up in court and in motion papers.