There are new decisions from the Appellate Term, First Department.
Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 2007 NYSlipOp 27173:
In response to plaintiff’s interrogatories, defendant insurer admitted that it
received the no-fault claims at issue and made partial payment on the claims.
Inasmuch as defendant’s verified answers to the interrogatories constituted
admissions of a party, which are admissible as evidence (see Bigelow v Acands,
Inc., 196 AD2d 436 [1993]), defendant may not now be heard to argue that
plaintiff failed to submit proof that the claims had been mailed and received,
and that they were overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5
AD3d 742 [2004]). To the extent that Empire State Psychological Servs. v
Travelers Ins. Co., 13 Misc 3d 131(A)(2006) supports a contrary conclusion, we
decline to follow it.Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignment (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Laufer v Lumberman’s Mut. Cas. Co., 9 Misc 3d 133[A] [2005], 2005 NY Slip Op 51632[U] [2005]). Since defendant failed to assert any other defenses, judgment was properly entered in favor of plaintiff.
A huge congratulations goes out to Steven F. Palumbo, Esq. He did the underlying trial as well as the appeal on this decision. Steve, I owe you a cigar (along with the rest of the plaintiffs attorneys).
Compare this decision with Dan Medical. Whereas Dan Medical seems to require that a foundation be made for the bills, this case would allow the fact that bills were received to be proven through an admission from the Defendant regardless of any foundation. In fact, all of plaintiff’s prima facie can be proven through such admissions.
Obviously, interrogatories aren’t the only way to go. Admissions can come in many forms. One thing that almost no one tries is using Defendant’s own motion papers as an admission. Most importantly, this decision paves the way for Plaintiff’s to prove the entirety of their prima facie case through a notice to admit which only references Defendant’s denial. OR, through any mechanism whereby Defendant admits that someone has attached a “true and accurate” copy of the denial.
To be sure, there will be a long hard fight as to what a Notice to Admit can be used for, but it seems that after this case interrogatories will work just as well without the traditional “heart of the matter” fight that attaches to the use of a Notice to Admit.
If anyone has been paying attention to the world of no fault in the past year or so, you’ve noticed that the 2nd Department has become decidedly less plaintiff friendly and up until this decision it was safe to assume that the world as we know it was slowly coming to an end (tiny exaggeration). Just when everything was at it’s darkest we find the 1st Department coming forward with this manna from heaven, a shining beacon of light for all the 2nd Department to see (another tiny exaggeration).
Take it easy, I’m just kidding. I’m not THAT gung ho about no-fault.