Second Department: Physician Office Records Clearly Admissible In Support Magistrate Hearing Where Author Physician Available To Testify

In a child support proceeding before a Support Magistrate in Nassau County, petitioner seeking a downward modification of child support payments was denied his attempt to admit certified medical records in support of his submission that he was unable to work. On review, the Family Court, Nassau County, denied the petitioner's objection and agreed with the Support Magistrate that the records were inadmissible on the basis that:

"...the records are hearsay as they deprive respondent of the right to confront the witness. This Court agrees. The [father] refers to CPLR 4518(a). This section refers to business records, not doctors office records or notes."

CPLR 4518(a)

Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.

On appeal, Appellate Division, Second Department held that the medical records, if mere physician office records and not medical expert opinion, would have been admissible if supported by the statutory foundation required under CPLR 4518(a) and despite the author of the records being available to testify in Matter of Fortunato v Murray (2010 NY Slip Op 03122):

"Contrary to the Family Court's general statement of the applicable law, "[a] physician's office records, supported by the statutory foundations set forth in CPLR 4518(a), are admissible in evidence as business records. However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor's opinion or expert proof" (Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano v Branks, 141 AD2d 705, 705-706). Moreover, a physician's office records "may be received as evidence despite the fact that a physician is available to testify as to the substance and contents of the records" (Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New York City Tr. Auth., 174 AD2d 268). Here, upon the father's appeal of the Family Court's order, this Court does not have the benefit of the actual medical documents in dispute since the documents are not part of the original papers before this Court. Thus, from the record, it is unclear whether the subject documents were the type which this Court views as admissible. Accordingly, we remit the matter to the Family Court, Nassau County, for a review by the Support Magistrate of the subject medical documents in light of and pursuant to the aforementioned standard as to admissibility."

Second Department: Inconsistent Findings in Defendant's Own Expert Testimony Did Not Raise Triable Issue Of Fact In "Serious Injury" Motion

In a "serious injury" CPLR 3212 motion, defendant's evidence from two different expert medical practitioners, who found that plaintiff had 25 degree range of movement and 45 degree range of movement respectively, but who both concluded that it was within "normal range", was sufficient to meet burden of showing that plaintiff did not have a serious injury, despite the defendant's expert evidence itself potentially raising an issue of fact about the exact degree of the plaintiff's condition: Layne v Drouillard 2009 NY Slip Op 06667.

Plaintiff NYPD officer commenced proceedings in Supreme Court, Kings County where defendant brought motion to dismiss alleging no serious injury within the Insurance Law 5102(d). In addition to this, issues surrounding the plaintiff's ostensible good health during retraining as an officer in another jurisdiction were relevant.

On appeal Second Department reversed:

"The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants' examining doctors set forth, in their affirmed medical reports, that the plaintiff had a full range of motion in his cervical and lumbar spine based on objective range of motion tests, wherein the numerical findings were compared to what is normal. In addition, the defendants submitted deposition testimony of the plaintiff showing that the plaintiff resumed his duties as a New York City police officer, passed medical and physical examinations, and attended the police academy to become a police officer in another jurisdiction. During this time, the plaintiff engaged in rigorous activities which included running, sit-ups, and push-ups (see Kasim v Defretias, 28 AD3d 611). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint."

In dissent, Angiolillo J. held that the defendant's own expert testimony, which showed inconsistent findings of fact of the range of movement of plaintiffs spine, raised a triable issue of fact sufficient to defeat defendant's motion.

"I disagree. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Where the submissions in support of the motion themselves raise a triable issue of fact, summary judgment must be denied (see Hwa Soon Um v Hoi Ku Yang, 63 AD3d 686; Robinson v Yeager, 62 AD3d 684; Locke v Buksh, 58 AD3d 698, 699). In my view, that is precisely the situation presented here. The defendants rely in support of their motion on the reports of two physicians who examined the plaintiff on their behalf. Each found that the plaintiff had a normal range of lateral motion in his lumbar spine. They did so, however, on the basis of different factual findings as to the extent of the plaintiff's range of motion and different expert opinions as to what is normal. Dr. Rafiy found that the plaintiff had a lateral range of motion in his lumbar spine of 45 degrees and that 45 degrees was normal. Dr. Zhou found that the plaintiff had a range of motion of 25 degrees in his lumbar spine and that 25 degrees was normal. Contrary to the majority's conclusion, these reports do not demonstrate the absence of issues of fact. If Dr. Rafiy is correct that the plaintiff's range of motion is 45 degrees and Dr. Zhou is correct that 25 degrees is normal, the defendant has failed to establish that the plaintiff does not have a serious injury. In fact, the defendant's experts agreed only on the conclusion that the plaintiff's range of motion was normal. A conclusory statement that a plaintiff did not sustain a serious injury, however, is insufficient to sustain summary judgment dismissing the complaint for lack of serious injury (see Landman v Sarcona, 63 AD3d 690; Powell v Prego, 59 AD3d 417, 419).

The evidence which the majority cites with respect to the plaintiff's employment and the ability to engage in physical activity which that employment involves may well defeat the plaintiff's claim at trial. On a motion for summary judgment, however, the moving party can prevail only upon establishing its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In the absence of proof as to the results of the specific medical examinations to which the plaintiff was subjected and the specific activities in which he engages as a police officer, the defendant has not met that burden here."

Second Department: Professional Reliability Exception Not Available Where Expert Witness Relies Upon Unobserved Or Non-Testified Third Party Report

In A-Tech Concrete Co., Inc. v Tilcon N.Y., Inc. (2009 NY Slip Op 01596) the Second Department examined the use of the professional reliability exception to the rule against hearsay in an appeal from a decision in a breach of contract proceeding in which the defendant was granted damages on counterclaim, and in which the expert witness attempted to rely on unobserved, third party expert findings.

At trial, the plaintiff sought to lead evidence in the form of an expert report, opinion evidence, and the report of a laboratory separate to that of the expert witness but on which the expert based his opinion evidence.

The expert witness sent materials to the laboratory for testing but did not oversee, attend, conduct or even observe the testing process. There was no evidence that the expert witness had personal knowledge of the testing process. Further, the expert witness did not testify about the testing procedure.

The defendant objected at trial to the admission of the laboratory report and the expert witness's opinion testimony and expert report based upon the prior report. The objection was sustained at trial and affirmed by the Second Department:

...the expert's testimony that reports such as the laboratory report are generally relied upon by professionals in his field did not sufficiently establish the reliability of the laboratory report for the purposes of the professional reliability exception (see Clevenger v Mitnick, 38 AD3d 586, 586-587; Wagman v Bradshaw, 292 AD2d at 89-90; Erosa v Rinaldi, 270 AD2d 384, 384-385). Thus, the Supreme Court properly sustained the defendant's objection to the [*2]admission of the laboratory report as well as the expert report and opinion testimony based upon the laboratory report.