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The “Application” of Law in No-Fault Cases: Part II - The Defendant’s Burden of Proof
By: Allison L. Goldstein, Esq.

The “Application” of Law in No-Fault Cases: Part II
The Defendant’s Burden of Proof

By: Allison L. Goldstein, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


While the plaintiff’s burden has been all but erased in the litigation of a no-fault matter, the defendant’s has increased astronomically. Though the courts have chosen to treat plaintiff’s the same way they would have at the time of claims processing, they have not done so for defendants. In general, a no-fault defendant is now required to prove that it timely mailed its denial before any affirmative defense may be raised. Despite plaintiff’s contentions that there is well settled case law ruling that it is the defendant’s burden of proof to show that a denial of claim form was timely mailed, there is, in fact, no case law that such a burden lies with the defendant.

In Presbyterian Hospital in the City of New York, a/a/o Karen DeGuisto v. Maryland Casualty Company, 90 N.Y.2d 274, 683 N.E.2d 1, 660 N.Y.S.2d 536, 1997 LEXIS 1358. (Court of Appeals, 1997) the court ruled that “an insurer may be precluded from interposing a statutory exclusion defense for failure to deny the claim within 30 days as required by Insurance Law §5106(a) and 11 NYCRR 65.15(g)(3).” Id. at 282. Presbyterian clearly states that the consequence of an untimely denial is possible preclusion to raise exclusion defenses. In Paris Const. Corp v. Franlo Tile, Inc., 215 A.D.2d 599, 688 N.Y.S.2d 662, (2nd Dept, April 1999), the Court found that the burden of establishing circumstances warranting preclusion rests with the party seeking that preclusion. Accordingly, if the plaintiff in a no-fault matter seeks to preclude the defendant from raising affirmative defenses, then the burden of proof lies with the plaintiff to show that such preclusion is warranted.


Moreover, the case law that plaintiffs often cite in support of their contention that the defendant has an affirmative duty to show in every case that a denial was timely mailed, when carefully examined do not support the plaintiffs’ contentions. Plaintiff’s counsel have cited to many cases including S&M Supply Inc., a/a/o Ioulia Napalkova v. GEICO Insurance, 2004 NY Slip Op 50502U, 3 Misc 3d 136A, 2004 Misc. LEXIS 750 (2nd Dept 2004), A.B. Medical Services PLLC v. GEICO Insurance, 773 N.Y.S 2d 773, 2 Misc.3d 26, 2003 N.Y. Slip Op. 23949 (2nd Dept 2003); S&M Supply Inc. A/a/o Jemma Meliksetyan and Sergei Khachatouryan v. GEICO Insurance, 2003 N.Y. Slip Op 51192U, 2003 N.Y. Misc. LEXIS 1067 (2nd Dept 2003); Hospital for Joint Diseases, et. al., v. Nationwide Mutual Insurance Company, 284 A.D.2d 374, 726 N.Y.S. 2d 443; 2001 N.Y. App Div. LEXIS 6107 (2nd Dept 2001); and Damadian MRI in Carnarsie P.C., a/a/o Andrea Henry v. Countrywide Insurance Company, 194 Misc.2d 708, 755 N.Y.S.2d 585, 2003 N.Y. Slip Op 23432, Civ. Ct., Queens County, J. Agate, February 13, 2003, in support of their position in the past. After a careful reading of these cases, anyone can see there is no controlling case law that places this alleged affirmative duty on the defendant to prove that it has timely mailed the denial before it has a right to present any defense. In Hospital for Joint Diseases, Id., the plaintiff provided in support of its motion for summary judgment Aevidentiary proof that the defendant insurance company did not respond to its September 1, 1999, claim for noBfault medical benefits within 30 days as required by Insurance Law §5106 (a) and 11 NYCRR 65.15 (g)(3).@ Id. at 375. The defendant in response submitted as proof in support of its position an affidavit from someone who did not have personal knowledge of the claim. The court ruled that “defendant’s submissions were insufficient to raise a presumption that HJD received the denial of claim.” Id. The court did not impose an affirmative duty on the defendant to show that its claim form was timely mailed prior to its being able to present affirmative defenses. In both S&M Supply Inc., a/a/o Ioulia Napalkova v.GEICO Insurance, and S&M Supply Inc. a/a/o Jemma Meliksetyan and Sergei Khachatouryan v. GEICO Insurance, supra., the Appellate Term, Second Department, in fact, places the burden on the plaintiff to show that the defendant failed to timely pay or deny the claim within 30 days as a part of prima facie entitlement to summary judgment.

In A.B. Medical Services v. GEICO, supra, the plaintiff submitted unrebutted proof that it mailed proof of claim to the defendant insurer on September 24, 2001. The first verification request that was submitted by the defendant was dated on its face, March 2002, well beyond the thirty day limitation. Again, in this matter, there was proof that the denial was mailed untimely which the defendant was unable to properly rebut.

As such, no controlling Court has in any way imposed an affirmative duty on the insurer to prove date of mailing for a denial that is timely on its face, and which timeliness can not be rebutted. Finally, Damadian MRI v. Countrywide, supra, again fails to impose the burden of proof regarding timeliness on the defendant. In Damadian, the evidence was clear that though the denial was timely on its face, there was clear evidence to prove that it was not mailed timely.
Therefore, based on the aforementioned case law, a timely denial on its face should create a rebuttable presumption that it is timely mailed until the plaintiff can prove otherwise, and not the reverse. Under the current standard, there is an automatic preclusion placed upon the defendant which is unjust, not a part of the regulation and is not required by any controlling case law.
To this day, plaintiffs and even some judges are pushing to increase the burden of proof on a defendant in a no-fault matter. Recently in medical supply and diagnostic testing cases, where the plaintiff merely obtained a prescription from a treating provider and “filled it,” plaintiffs have argued that a defense of medical necessity should not apply to them since they, as a facility that is merely filling a prescription, are not in a position to determine the necessity of the services that they provide. Some judges have even sua sponte ignored testimony of doctors that found that the services of the provider to be medically unnecessary. Some judges, at the urging of attorneys for plaintiffs, have even gone so far as to preclude a peer review doctor from testifying on technicalities outside of those already mentioned.

The courts are going further and further in ignoring the clear language of the No-Fault Regulation which states that, “[m]edical expense shall consist of necessary expenses for medical, hospital, surgical nursing, dental, ambulance, x-ray, prescription drug and prosthetic services...” 11 NYCRR 65-1.1 (d). The courts are turning away from the No-Fault Regulation and creating new standards that do not exist and are apparently contrary to the legislation.

Editor’s Note: Allison L. Goldstein is a graduate of Boston University School of Law and an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York

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