Central Nassau Diagnostic Imaging, P.C. v GEICO, 2010 NY Slip Op 20244 (App. Term, 1st, 2010)
Here, defendant was served with a notice to admit requesting it to admit a few straightforward, relevant facts which it knew or could have ascertained upon reasonable inquiry — whether the two bills attached to the notice were “true and accurate” copies of the bills received by defendant, and that defendant had not paid those bills. The facts on which plaintiff sought admissions were clear-cut and easily provable (see Marine Midland Bank v Custer, 97 AD2d 974, 974 [1983]); plaintiff did not seek admissions as to legal conclusions or on scientific or technical information (see Villa, supra; Berg v Flower Fifth Ave. Hosp., 102 AD2d 760 [1984]). That these facts were material to plaintiff’s prima facie case and determinative of its claim do not preclude them from being deemed admitted by defendant (see Marine Midland Bank, supra; Psaroudis v Psaroudis, 30 AD2d 841 [1968], affd 27 NY2d 527 [1970]; Siegel, NY Practice § 364, at 604 [4th ed]).
Moreover, plaintiff was justified in seeking admissions on those facts, since, on the record before us, no substantial dispute existed between the parties on those facts (cf. Hawthorne Group, LLC v RRE Ventures, 7 AD3d 320 [2004]). We note in this connection that, other than in its conclusory answer, defendant never denied the accuracy of the facts on which plaintiff sought admissions (cf. Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 [2000]), and defendant did not seek a protective order to test the validity of the notice to admit (see CPLR 3101) or to amend or withdraw the admissions (see CPLR 3123[b]). We also note that in its brief on appeal, defendant does not seriously challenge the accuracy of the content of the bills attached to the notice to admit, its receipt of the bills, or its acknowledged failure to pay the bills.
Therefore, plaintiff’s requests for admissions were appropriate and defendant, by failing to respond to the notice to admit or seek other appropriate relief, is deemed to have admitted the facts on which plaintiff sought admissions. Because defendant admitted that the two bills attached to the notice were “true and accurate” copies of the bills received by defendant and that defendant has not paid those bills, plaintiff established its entitlement to recover the overdue assigned first-party no-fault benefits (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).[FN1]
Our conclusion that a plaintiff-provider can use admissions obtained through a notice to admit to establish its entitlement to recover overdue assigned first-party no-fault benefits is consonant with the purposes underlying the No-Fault Law, which “were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Medical Socy. of State v Serio, 100 NY2d 854, 860 [2003]), as well as case law [*3]allowing a plaintiff-provider to establish its entitlement to such benefits based on admissions obtained from a defendant-insurer on interrogatories (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]).
Footnote 1:To the extent Bajaj v Gen. Assur. (18 Misc 3d 25 [2007]) can be read to support a contrary result, we decline to follow it.
Such a thing of beauty. Such a contrast. The Court followed the incredibly plain meaning of a statute. Get this before the App Div 2 and you’ll see the end of Baja.
Well, that makes up for “Urban Radiology,” doesn’t it.
This decision doesnt really help provider-plaintiffs in the first department much. Providers could already make their prima facie with interrogatories or denials or any other concession of receipt.
To me, the issue is whether defendants can also use notices to admit, and for what purposes.
Yeah but footnote 1 is a beauty. Sometimes less is more. Defendant’s should be able to use the Notice to Admit as the rule states.
The wisdom of the First Deptartment will carry the day with the Appellate Division should Geico decide they want to make more law. I expect Geico will do no further damage as this ruling has now confirmed what most of us already knew.
Big Deal. We knew it was coming. Why did it take the Court over 6 months after argument to decide the case. Nice Job Kurt.
Well it is a big deal when a court follows the law Mr. Lusty Lustig.
Good job Kurt.
“I have and I always will be your friend.”
I continue to believe that the use of a “Magic 8-Ball” for deciding no-fault cases would result in a higher level of consistency and legal accuracy than the current arrangement.
I swore off putting my two cents into the blogs, cause it turns into rants instead of real legal discussion (from me included) – although I read JT’s and DG’s blog every day. Since Central Nassau was my case, and for all those interested, or disinterested, this is what happened on arguement: nothing. Geico’s attorney presented a very good argument and voiced the 2nd Dept opinions. Judge McKeon hammered the poor attorney mercilessly. When it came time for me, not once justice had a question. The issue was clear cut to McKeon and the panel – deal with the issues, its a prompt pay statute, receipt and non payment of bills was not at issue, this issue is wasting our time!
This is not about “eight balls” Larry. There are good judges, bad judges, and judges we can disagree with. For plaintiffs, its not a game. Its a business – but its not a war. We need each other, or we dont eat.
Central Nassau was an important decision not because it was my case, or because Notices to Admit are permitted in the 1st Dept and Plaintiff attorneys can waive it in front of defense attorney’s noses – it was important because the 1st Dept said to all of us to stop the nonsense.
And remember, for all of us plaintiff attorneys, it was GEICO that started this mess. It made plaintiffs go forward on prima facie regardless of their defense or lack thereof. To the other insurance carriers, thank GEICO for the Central Nassau decision when a plaintiff now says that YOU go forward on your prima facie.
And where GEICO is paying 5-10% of many provider’s claims – and rarely settles before trial – also thank GEICO when you send your doctors home because there are no judges.
That is my opinion and I am sticking to it … I think.
Kurt why the attack on me. Everyone knows I am the one that rants.
While on the issue let’s keep the issue simple. A Notice to Admit is a formal judicial admission. It is a tool created by the legislature in order to streamline the litigation process. Specifically it is a device meant to clear court dockets by having parties admit that which is obvious. Thus less time is spent proving that which should be admitted.
It is the second device to attain efficiency. The first device is known as an answer. Here a defendant admits that which is true and not in contention and denies that which it has a good faith basis to deny.
To wit most insurance companies admit that they are insurance companies although some should deny this because they are really just theives. But I digress.
Can you imagine having to prove that an insurance company is an insurance company after the insurance company admitted such in their answer. Imagine the Court telling you that even though its admitted you must prove that they are an insurance company with business records.
I give you the equivalent. The App Term 2nd’s decision in Baja.
It is a symptom of lawlessness.
Like a Court that says the president has no right to suspend deep water oil drilling. Where is the right to do it in the first place.
Or the extreme Court placing a gun in every hand when the constitution says guns are for militias which at the time were our only means of defense against hostiles — we call it the National Guard now. The blood on that will be on that court’s hands when children are gunned down on the street in cities like NY that have been made safe because of strict gun laws.
Soon we will be totally limited in what we can say but we’ll be allowed to own automatic assault guns and stinger missiles.
But I digress and rant.
Ray,
The saddest day for me was when you (rumor has it) you have up your website. You are the voice in the wilderness. Others may not understand you … genius is often misunderstood!? It just that those who sincerely buy into the facist rhetoric of the insurance companies are nothing more than glorified claims examiners. How about informed debate of topic instead of whining jibes about how unfair the Courts are?
Kurt if the Courts are unfair the topic debate is irrelevant. It is like boxing judges scoring only punches thrown by one of the boxers. The other boxer’s punches — legal analysis — are irrelevant if not taken into account.
I guess the knock outs can still come from juries and fair courts.
Third-Party biller and a prima facie case.
After reading the recent case law from the Appellate Term, Second Department, I believe that the law is clear that a representative from a third-party billing company cannot establish a prima facie case in the Second Department whehter at trial or on summary judgment. Pinehollow was ovveruled in Carothers v. Geico. As a mater of law, a third-party biller cannot establish a prima facie case.
Yet, despite the case law from the Appellate Term, the trial courts in Kings County continue to allow a medical provider to establish a prima facie case through the testimony of a third-party biller. The trial courts simply do not follow the clear precedent from the Appellate Term, Second Department and do whatever they want. The judges in Kings County are way too sympathetic to the plaintiff’s bar.
Please comment either negative or positive.
I don’t like your tone. Quit being a baby.
I am not being a baby. I am just stating the reality in Kings County. Aside from my comment that the judges are too sympathetic to the plaintif’s bar which by the way keeps defendants in business and provide us jobs to do this nonsens, the trial courts in Kings County very rarely follow the Appellate Term, Second Department. Lets see what will happen to Urban Radiology when it filters down to the trial courts.
very cute. I guess I deserved that. Let’s see what you post the next time you get a bad decision from a judge in Civil,Kings.
Have a happy 4th.
Really. How is it that insurance companies use third parties to mail their denials. I keep getting this “Center for the Disabled” that is used by SF. I looked it up. It appears to be an operation that sells durable medical equipment and employs disabled people to do mailing.
I hope they are being paid fairly.
And SF alos uses All American Transport to do their mailing. And when you ask All American who actually does the mailing they say they hire “an independent contractor.” That’s all. I hope the “independent contractor” is actually a documented worker who is not being exploited.
“very cute. I guess I deserved that. Let’s see what you post the next time you get a bad decision from a judge in Civil,Kings.”
I won’t post anything. I’ll do what I always do: Get drunk and wander the streets looking for puppies to kick.