No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
Archive for July 20th, 2010
Notice to Admit is successful in District Court
Meridan Health Acupuncture, P.C. v Auto One Ins. Co., 2010 NY Slip Op 51263(U)(Dis. Ct. Suffolk 2010)
In this case, the District Court allowed a Notice to Admit to satisfy a plaintiff’s prima facie burden. It also found that a Defendant’s really cute, but completely inappropriate response, to the notice to admit to be deemed a nullity. The net effect, in the eyes of the District Court, was to deem the allegations set forth in the notice to admit to be deemed admitted.
I would have no problem with the court’s findings of facts and conclusions of law, provided the District Court transplanted itself to the Grand Concourse from 1850 New York Avenue. Thus, if the District Court, Third District, Huntington Part, sat in the hypothetical District Court, Third District, Bronx Part, then one should probably applaud this opinion. Furthermore, if the Appellate Division, Second Department overturns, in effect, Art of Healing, which many of us think is probably going to happen, then this decision would probably be correct. But, District Suffolk sits on Long Island, and cannot disregard the law as the Appellate Term in this Department has said it to be, viz, a prima facie case requires, among other things, a business record foundation for the entry of the bills into evidence.
But if you read this decision, note how the Court avoids citing Second Department precedent (when convenient), and even cites the one and only Appellate Division, First Department case that commented on what constitutes a prima facie case.
This one takes the cake
Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20285 (Dis. Nassau 2010)
I am somewhat flabbergasted at this decision. I am pretty down the middle (I think) and I really try to be as fair as I can on this blog. With that introduction, I will say the following. I would probably volunteer to do the appeal on this one, just because it is off on the law, the facts and is against the trend of every modern case that has come out of both branches of the Appellate Term, Second Department, as well as some “hidden” Appellate Division precedent, which I will not disclose. You can read the facts of this case at your leisure.
