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."

Supreme Court, Queens County: Business Records Exception Held Not To Apply To Insured's Statements To Insurer

The business records exception to the rule against hearsay was considered in the recent decision of the Supreme Court, Queens County in Metropolitan Insurance Casualty Company v Shaid (2009 NY Slip Op 51038(U)).

The plaintiff insurer sought summary judgment against the defendant, among others, who was the owner insured of a motor vehicle that had been involved in an accident causing injury to an unrelated party, which party had brought a separate preceding suit against the defendants out of the circumstances of that accident.

The defendant insured was alleged by the plaintiff to have given false statements to the plaintiff insurer that he did not know who was operating the vehicle at the time of the accident, and consequently it was alleged that the defendant had breached the cooperation clause in the contract of insurance.

At issue was whether the insured's statements to the insurer were false. In support of its motion for summary judgment under CPLR 3212, the insurer alleged that the defendant knew who the driver of the vehicle was, and was thereby prejudiced by the lack of cooperation.

The defendant insured alleged that evidence of its statements to the insurer was hearsay, and therefore as they were the basis of the plaintiff's motion for summary judgment, that motion should be denied.

The plaintiff insurer contended that the evidence was not only reliable, but fell within the business records exception to the rule against hearsay and therefore the statement of the defendants could be lead.

The court examined the use of the business records exception as follows:

Plaintiff contends that the statements fall under the business records exception to the hearsay rule. For the purposes of determining whether hearsay is admissible under business records exception, the concern relating to trustworthiness extends to "each participant in the chain producing the business record, from the initial declarant to the final entrant." (Matter of Leon RR, 48 NY2d 117 [1979].)

The Court of Appeals has ruled that "the statement is inadmissible hearsay if any of the participants in the chain is acting [*3]outside the scope of the business duty." Id. at 122. It is undisputed that the insured was outside the insurers enterprise at the time of the statement.

At issue though, is whether the duty of an insured to cooperate with an insurer is comparable to a business duty during an insurance investigation. (Hochhauser v. Electric Insurance Co., 46 AD3d 174 [2d Dept 2007].) However, "despite potential consequences which may befall an insured who fails to provide accurate and truthful information to, or to cooperate with, an insurer, the insured's statement to the insurance investigator . . . was not made under the circumstances which create a high probability that the statement was truthful." (Corsi v. Town of Bedford, 58 AD3d 225, 231 [2d Dept 2008], quoting Hochhauser v. Electric Insurance Co., 46 AD3d at 1823.)

The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of business are inherently highly trustworthy because (1) the records are routine reflections of the day to day operations of a business; (2) the entrant is obliged to be truthful and accurate for purposes of conducting the enterprise.(Hochhauser v. Electric Insurance Co., 46 AD3d 174 [2d Dept 2007].)

Here, the insured was outside of the insurer's enterprise and was not communicating information regarding the accident under the compulsion of any business duty. (see generally, Matter of Leon RR, 48 NY2d 117 [1979].) Accordingly, the statements made by Shaid and Arshad to the insurance investigator do not constitute a business record. Without the benefit of the business record exception, the plaintiffs statements to the investigator are simply impermissible hearsay.

Practice Note: With respect generally to the business records exception in New York State, counsel are reminded of the terms of CPLR 4518.