Prime Psychological Services, P.C., a/a/o Anthony Montes, Plaintiff,
Auto One Insurance Company, Defendant,
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff: Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Esqs.
Edward A. Cespedes, Esq. of Counsel
Defendant: McDonnell & Adels, P.C. Diana Leahy. Esq.
Sharon A. Aarons, J.
Plaintiff commenced this action to recover no-fault first party benefits for unpaid medical services provided to Anthony Montes in the amount of $1,221.04, together with statutory interest, statutory attorney's fees and costs and disbursements. This matter came before this Court for trial on December 7, 2007. In support of its prima facie case, plaintiff submitted a copy of its summons and complaint, a Notice to Admit and defendant's Responses to the Notice to Admit, which were marked and entered into evidence as Court Exhibits I, II and III, respectively. Neither plaintiff nor defendant presented any witnesses nor proffered any other evidence. After review of these Court Exhibits and oral argument the Court ruled that plaintiff had not established a prima facie case and granted defendant's motion for a directed verdict. Due to the fact that it has now become increasing common for plaintiffs seeking to recover no-fault first party benefits to attempt to establish its/their prima facie case at trial through the use of a Notice to Admit and the responses thereto, has resulted in the trial courts being divided on this issue ( compare RJ Med., P.C. v. All-State Ins. Co., 15 Misc.3d 1140 (A), 841 N.Y.S.2d 823 (Civ. Ct., Bronx County, 2007);PDG Psychological, P.C. v. State Farm Mut. Auto Ins. Co., 12 Misc.3d 1183 (A), 824 N.Y.S.2d 766 (Civ. Ct., Kings County, 2006), with Seaside Med., P.C. v. General Assur. Co., 16 Misc.3d 758, 842 N.Y.S.2d 234 (Dist. Ct., Suffolk County, 1st Dist. 2007); New York Massage Therapy P.C. v. State Farm Mut. Ins. Co., 14 Misc.3d 1231 (A), 836 N.Y.S.2d 494 (Civ. Ct., Kings County, 2006), the Court stated it would issue a formal written Decision/Order addressing the matter.
Plaintiff's Notice to Admit (Court Exhibit II) asked the defendant to admit the following eleven items:
1. The defendant received the claims(s) for No-Fault benefits that are the subject of
2. The defendant received the N-F-3 Verification of Treatment Form(s) that are the subject of this action.
3. The defendant received the bill(s) that are the subject of this action.
4. The defendant received Assignment of Benefits Form(s) for the claim(s) that are the subject of this action.
5. Annexed hereto are true and accurate copies of the plaintiff's bill(s), claim(s) and/orN-F-3(s) referenced in 1 through 3 above, and the Assignment of Benefits
forms referenced in 4 above.
6. The defendant received the summons and complaint in this action.
7. The defendant received plaintiff's bill(s) and/or N-F-3(s) referenced in 1 through 3 above, and the Assignment of Benefits form(s) referenced in 4 above, more than thirty
days before the defendant received the summons and complaint in this action.
8. The defendant has not paid the bill(s), claims(s) and/or N-F-3(s) referenced in 1 through3 above.
9. The defendant has not paid the bill(s), claims(s) and/or N-F-3(s) referenced in 1 through3 above, in full.
10. The defendant did not mail requests for verification to the plaintiff for the plaintiff'sbill(s), claims(s) and/or N-F-3(s) referenced in 1 through 3 above.
11. The defendant issued a policy of insurance covering the vehicle(s) plaintiff's assignor(s)was/were in, or by which the assignor(s) was/were injured, at the time of the
underlying motor vehicle accident(s).
Defendant's verified Response to plaintiff's Notice to Admit contained the same verbatim response to each of the eleven questions of the Notice to Admit which reads as follows:
Objection. The Notice to Admit goes to the heart of the matter being litigated and, as such, is an improper use of a Notice to Admit. The Hawthorne Group, LLC v. RREVentures, et al., 7 A.D.3d 320, 324 (1st Dep't 2004) and Sagiv v. Gamache, 26 A.D.3d 368, 369 (2nd Dep't 2006); Defendant further objects as Plaintiff is asking Defendant to admit the genuineness and authenticity of any documents provided heretofore which is improper as such is exclusively within Plaintiff's knowledge. Spawton v. James E. Strates Shows, Inc., 75 Misc.2d 813, 349 N.Y.S.2d 295 (Sup.Ct. Erie County, 1973) (emphasis added).
CPLR 3123(a) provides, inter alia, as follows:
Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.
Here, the defendant neither admitted, denied or set forth a reason why he could not truthfully either admit or deny those matters sought in the Notice to Admit. Unlike requests for written interrogatories where a party is permitted to object and state the reason with reasonable particularity (CPLR 3133 (a)), such a procedure is not authorized with a Notice to Admit (CPLR 3123(a)). Webb v. Tire and Brake Distributor, Inc.,13 A.D.3d 835, 786 N.Y.S.2d 636 (3rd Dept. 2004). If a party believes that any of the requests for admissions are improper the correct procedure is seek a protective order under CPLR 3103. Kowalski v. Knox,293 A.D.2d 892, 741 N.Y.S.2d 291 (3rd Dept. 2002). Otherwise, they may be deemed be admitted. Id . at 892; Tire and Brake Distributor, Inc., 13 A.D.3d at 838. Notwithstanding the fact that a party fails to respond to a Notice to Admit or its responses ...