Open MRI of Tarrytown v GEICO Ins. Co., 2009 NY Slip Op 50874(U) (Civ Ct City NY, Bronx County)
The Appellate Term, First Department has allowed the use of interrogatory responses to establish a prima facie case, stating "having admitted receipt of plaintiff's claims for no-fault first party benefits, defendants may not now be heard to argue that plaintiff failed to establish that the claims had been mailed and received. (P.L.P. Acupuncture, P.C., v. Travelers Indem. Co., 19 Misc 3d 126(A) [2008][N.Y.App. Term 1st Dept.], quoting Fair Price Med. Supply, Inc. v. St. Paul Travelers Ins. Co., 16 Misc 3d 8,9 [2007][N.Y.App. Term 1st Dept.]). However, there are notable differences between the use of interrogatories and a notice to admit. As previously mentioned, a notice to admit may not be used to seek answers to material issues, whereas, an interrogatory is given under oath and may be used to address any relevant question. (Villa at 620). Furthermore, the use of a defendant's response to interrogatory questions in which it is stated that the claims were mailed and received followed by a subsequent denial is much different than the scenario in which a defendant fails to respond to a notice to admit and it is therefore deemed admitted that they received the claim.
This Court is cognizant that the Second Department and First Department often differ on matters concerning no-fault litigation. However, since the First Department has yet to speak on the matter, this Court is bound by the Bajaj decision of the Appellate Term, Second Department. "The doctrine of stare decisis requires trial courts...in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or [the Appellate Division of this department] pronounces a contrary rule." (Striver 140 v. Cruz, 1 Misc 3d 29, 31 [2003][NY App. Term 2nd Dept.]), quoting Mountain View Coach Lines v. Storms, 102 AD2d 663, 664 [1984][2nd Dept.]).
The Second Department has held that a plaintiff must lay a proper foundation for the admissibility under the business records exception to establish a prima facie case. (Bajaj at 28). According to Bajaj,the use of a notice to admit to ask the defendants if they have received the claim form is a proper use of the notice to admit. (id.). If defendant fails to respond to this notice to admit, it is then admissible that the defendant in fact received plaintiff's claim form. (id.). However, an acknowledgment by defendant that they received the claim form is not a concession of the facts set forth in the claim. (id.). It remains the plaintiff's burden to lay the sufficient foundation establishing that the claim form is a business record, and as such, is admissible to prove the truth of the matters asserted therein. (id.). This holding continues to be upheld by the Second Department. (see Vista Surgical Supplies, Inc. v. State Farm Mutual Ins. Co., 22 Misc 3d 128(A) [2009][N.Y.App. Term 2nd Dept.]).
This decision appears to stand for a bizarre proposition: that if a defendant admits receipt in an interrogatory response, plaintiff can establish its prima facie case though those admissions, without the bills being in evidence. But, if defendant admits receipt in a response to a notice to admit (or by improperly or not answering a notice to admit), then the bills must be in evidence.
Have a look at Devonshire Surgical Facility v GEICO, 16 Misc 3d 130(A)(App. Term, 1st, 2007)("Defendant's challenge to the sufficiency of Carnegie's prima facie case is unavailing inasmuch as defendant's documentary submissions established its receipt of Carnegie's claims.")
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