Thursday, January 8, 2009

You Won, So Why Are You Here?

NO-FAULT – NOTICE TO ADMIT – ADMISSIBILITY OF CLAIM FORM AS BUSINESS RECORD
Peter Connely D.C. a/a/o Mohammad Kifayeh v. Progressive Cas. Ins. Co.

(App. Term, 2nd Dept., decided 12/31/2008)


Progressive moved for a protective order striking plaintiff medical provider's notice to admit.  Kings County NYC Civil denied the motion, but "set forth set forth its opinion as to the use of a notice to admit in a no-fault action (see generally Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007] ['to the extent that defendant may have admitted, pursuant to CPLR 3123, the genuineness of the claim denial form, it did not thereby concede the admissibility of the provider's claim form as a business record . . .  Similarly, even had defendant admitted, pursuant to CPLR 3123, the genuineness of the provider's claim form which it received . . . [t]he admission would serve only to acknowledge that this was the claim form that it received'])."

Plaintiff liked the outcome but not the part about the limited use of notices to admit, and appealed.  In DISMISSING the appeal, the Appellate Term, Second Department, stated:
Here, defendant sought a protective order and the court denied its motion, affording plaintiff the full relief sought in opposition (see Atlantic Hudson Realty v Rhodes, 271 AD2d 558 [2000]). "[W]here the successful party has obtained the full relief sought, he has no grounds for appeal or cross appeal. This is so even where that party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his favor, or where he failed to prevail on all the issues that had been raised" (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [internal citations omitted]).
This, of course, is what's known as the sore winner rule of appellate practice.

1 comment:

Hugh Fustercluck (first post here of 2009!) said...

An ungracious winner is even worse than a sore loser. At least a loser has something to feel sore about. It's these people for whom winning is not enough, they have to make a fuss because they didn't win in exactly the way they wanted to, who should have their wins reversed so that they'll really have something to complain about.

Sort of reminds me of the kind of kids I knew in school who would get a 99 on a test that everyone else failed or barely passed, and then grouse about the fact that they should have been given credit for their one wrong answer.

It's like the old aphorism: "I complained I had no shoes, then somebody gave me some shoes and I complained that they didn't match my belt."