Advanced Tempromandibular Disorder & Dental Surgery Assignee of Kira Lanskaya v. Progressive Ne. Ins. Co.

C. STEPHEN HACKELING, J.

Rapuzzi, Palumbo & Rosenberger, P.C., Jason A. Moroff, Esq., Wantagh, Attorney for the Plaintiff.Carman, Callahan & Ingham, LLP, Evelina K. Popijakowska, Esq., Farmingdale, Attorney for the Defendant.C. STEPHEN HACKELING, J.

establish its affirmative defense of lack of medical necessity as the plaintiff has not carried its burden of establishing a prima facie cause of action.

The issue presented to the Court for disposition is whether a no-fault medical service provider can establish its Sec. 5106(a) prima facie cause of action through a Notice to Admit? It is the Court's opinion that it can.

The Court concurs with the plaintiff's assertion that New York's Courts have consistently held that a plaintiff in a medical service provider no-fault matter establishes its prima facie entitlement to relief by demonstrating: 1) the prescribed statutory billing forms were mailed to and received by the defendant; and 2) payment of no-fault benefits is overdue. See N.Y. Insurance Law § 5106(a); Kipor Medicine P.C. v. MVAIC, 23 Misc.3d 948, 880 N.Y.S.2d 459 (N.Y.C.Civ.Ct.2009) citing to Fair Price Med. Sup. Co. v. Travelers Indem. Co., 10 N.Y.3d 556, 860 N.Y.S.2d 471, 890 N.E.2d 233 (N.Y.2008); Pres. Hosp. v. Maryland Cas. Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536, 683 N.E.2d 1 (N.Y.1997). See generally, Nyack Hospital v. Metropolitan Property and Cas. Ins. Co., 16 A.D.3d 564, 791 N.Y.S.2d 658 (N.Y.A.D. 2nd Dept.2005). Mary Immaculate Hospital v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 (N.Y.A.D. 2nd Dept.2004).

At first blush it would appear that two such non-complex elements could appropriately be established via a N.Y. CPLR Sec. 3123 formal judicial admission. However, the Second Department Appellate Term for the 11th and 13th Districts has determined that a Notice to Admit, by itself, is not evidentiary proof sufficient to establish a prima facie case, and that witness testimony is necessary to lay a foundation to establish the admissibility of a claim in the form of a business record. Bajaj v. General Assur., Co., 18 Misc.3d 25, 852 N.Y.S.2d 576 (2nd Dept.App. Term, 11th & 13th Dists.2007). In stark contrast several Appellate Term Courts in the First Department have determined that judicial admissions constitute evidence sufficient to prove mailing and receipt of no-fault medical provider claims. See P.L.P. Acupuncture, P.C. v. Travelers Indemnity Co., 19 Misc.3d 126(A), 2008 WL 682582 (1st Dept.App. Term 2008) citing to Fair Price Med. Supply, Inc. v. St. Paul Travelers Ins. Co., 16 Misc.3d 8, 838 N.Y.S.2d 848 (1st Dept.App. Term 2007). This position is further buttressed by a First Department Appellate Division holding that informal judicial admissions established via answers to interrogatories in a personal injury action can establish a prima facie case. Bigelow v. Acands, Inc., 196 A.D.2d 436, 601 N.Y.S.2d 478 (N.Y.A.D. 1st Dept.1993).

The doctrine of stare decisis binds this Court to follow the rulings of its Appellate Term (9th & 10th Dists.); the Second Department Appellate Division and the New York Court of Appeals. The plaintiff advances the argument that stare decisis requires it to adopt the First Department Appellate Division/Term decisions in the absence of a Second Department or Court of Appeals decision. See, Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (N.Y.A.D. 2nd Dept.1984). While generally true, the novel complicating factor in this case is that an Appellate Term Court in a different district in this Court's Appellate Division has contemporaneously taken a contrary position. In such a circumstance, when presented with conflicting Appellate decisions from outside its jurisdictional chain, this Court determines that stare decisis does not bind it and that it is free to make its own decision.

The Court notes that a sister Suffolk County District Court has already addressed the issue and rendered a treatise provable or the genuineness of a document. See, New York Law Journal, 3–26–2009, N.Y.L.J. 4 (col.1); See generally, Taylor v. Blair, 116 A.D.2d 204, 500 N.Y.S.2d 133 (N.Y.A.D. 1st Dept.1986). The distinction between informal judicial admissions which are adduced in sworn deposition transcripts and interrogatory answers, and those established via formal judicial admissions established in a Notice to Admit is that the informal admissions must be proven at trial via witness testimony. The absence of an affirmative denial waives the need to prove the requested admission as effectively as if admitted in the answer.

Accordingly, the Court finds that the plaintiff has established an unrebutted prima facie cause of action pursuant to New York Insurance Law Sec. 5106(a) and enters judgment for it in the sum of $1,184.66 plus statutory interest from 30 days after its claim date, statutory attorneys fees and costs. Settle judgment upon twenty (20) days notice.