The New York Law Journal article I co-wrote with David M. Barshay, Esq. was cited in a recent Appellate Division, Second Department decision, Firmes v. Chase Manhattan Automotive Fin. Corp, 2008 NY Slip Op 00449. The case involved a 6.5 million dollar jury verdict.
In the decision, written by Justice Dillon, the Court discussed the use of a notice to admit in relation to collateral source discovery and cited to our article:
A fourth device that could be utilized in the context of collateral source discovery is the notice to admit under CPLR 3123(a) (see generally Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6; Dillon, The CPLR’s Most Dangerous Discovery Statute, NYLJ Mar. 28, 2003, at 4, col 4; see also Barshay and Gottlieb, Use of Notice to Admit in No-Fault Insurance Litigation, NYLJ Aug. 6, 2007, at 4, col 4). Admittedly, notices to admit cannot be used to determine ultimate disputed issues regarding collateral source payments such as their precise amounts and their correspondence to the items of damages for which statutory compensation is sought (see generally Hawthorne Group v RRE Ventures, 7 AD3d 320, 324; National Union Fire Ins. Co. of Pittsburgh, Pa. v Allen, 232 AD2d 80, 85; Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453). We perceive, however, no reason why such notices, timely served not less than 20 days prior to trial (see CPLR 3123[a]), could not be used to obtain information for which there can be no legitimate dispute that the plaintiff has received collateral source reimbursement of an unspecified sum toward all or some of the medical expenses, rehabilitation expenses, lost earnings, or other claimed economic loss. A response to a notice to admit, or the plaintiff[*12]‘s failure to respond, which is deemed an admission (see CPLR 3123[a], [b]), could provide an evidentiary basis for a defendant’s subsequent motion for a collateral source hearing.
This is a good example of how many of the issues constantly litigated in no-fault, especially evidentiary issues, can transcend no-fault. The law made on no-fault cases may very well affect other areas of law; even multi-million dollar cases.