First Department: Order to Redact Admissions Against Interest By Witness Plaintiffs In Hospital Records On Basis Of Unreliability Reversed

Plaintiff apartment shareholders and officers were injured when, while observing work performed by defendant apartment corporation's contractor, fumes from floor finishing material ignited causing a fire. Defendant's contractor was a cousin of the plaintiffs. Defendant alleged plaintiffs were assisting the contractor and sought to lead admissions made by plaintiffs to fire department personnel, hospital staff and ambulance attendants that they were involved in the work.

The Supreme Court granted plaintiffs' motion to redact the hospital records to remove the admissions that the plaintiffs were working. On appeal First Department held plaintiffs were not entitled to redaction of the records so as to omit the admissions that they were involved in the work on the building in Preldakaj v Alps Realty of NY Corp. (2010 NY Slip Op 00294).

"The motion court, after correctly finding that the admissions were not germane to the diagnosis or treatment of plaintiffs' injuries and therefore were not admissible under the business records exception to the hearsay rule (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95 [1999]), ruled that the records were to be redacted to omit statements that plaintiffs were applying the polyurethane. In addition, apparently addressing the exception to the hearsay rule for admissions against interest in hospital records (see Coker v Bakkal Foods, Inc., 52 AD3d 765 [2008], lv denied 11 NY3d 708 [2008]), the court ruled that the statements were unreliable, and therefore inadmissible, in view of uncontradicted evidence about the effects of the morphine that was administered to plaintiffs during treatment. This was error. The evidence concerning the effects of the morphine goes to the weight to be accorded the admissions, not their admissibility (see [*2]Gangi v Fradus, 227 NY 452, 457 [1920]).

The statements that plaintiffs were applying the polyurethane may only be admitted if there is clear evidence connecting the party to the entry (i.e., testimony that the party made the statement) (see Berrios v TEG Mgt. Corp., 35 AD3d 775 [2006]). If the statements are admitted at trial and it is determined that, contrary to plaintiffs' position, they were refinishing the floors when the fire broke out, then it will have been shown that plaintiffs' "role in the affairs of [Alps] involved ensuring the performance of the particular corporate duty whose breach [they] allege[] caused [their] injur[ies]," and they will be unable to prevail in this action (see 47 AD3d at 512)."

First Department: Excited Utterance Exception Not Applicable When Event Reported 2 1/2 Hours After Incident

The First Department confirmed that the excited utterance exception to the rule against hearsay was not available in a matter where the decedent reported her fall to the plaintiff daughter by telephone some two and a half hours after her fall in Soto v Assisted Care Home Attendants Program 2009 NY Slip Op 07461

The defendant's summary judgment motion to dismiss was granted at trial and affirmed on appeal. Critically, the decedent was conscious after her fall and had time to reflect on her statement before speaking with the witness.

"Plaintiff sued for injuries sustained by decedent when she fell out of bed due to the alleged negligence of her home health aide. Defendants were entitled to judgment when they established, through plaintiff's own deposition testimony, that plaintiff had no personal knowledge of the facts related to the injury (see Rodriguez v Sixth President, 4 AD3d 406 [2004]), thus relegating her theory to being proven only by speculation (see Teplitskaya v 3096 Owners Corp., 289 AD2d 477 [2001]).

In any event, plaintiff's testimony was based on inadmissible hearsay, rendering it insufficient to create a triable issue of fact (see Narvaez v NYRAC, 290 AD2d 400 [2002]). There is a notable exception to the hearsay exclusion rule for statements uttered under the stress of excitement, caused by an external event that "stills [the declarant']s reflective faculties," removing the opportunity for deliberation that might lead to untruthfulness (People v Edwards, 47 NY2d 493, 497 [1979]). Statements made by decedent and the home health aide, in a telephone call to plaintiff approximately 2½ hours after the fall, were precipitated by an event that was traumatic to both. However, in view of the fact that decedent was apparently conscious during this passage of time, she was capable of reflection by the time she spoke with her daughter [*2]on the telephone, thus eliminating the spontaneous nature of her declaration."

Supreme Court, New York County: How CPLR 2106 Revived Otherwise Inadmissible Expert Evidence And Saved The Plaintiff's Claim In A "Serious Injury" CPLR 3212 Motion

In Uribe v Amboy Bus Co., Inc (24 Misc 3d 1217(A) 2009 NYSlipOp 51481(U)) the plaintiff, a taxi operator who was injured in an auto accident, commenced an action against defendant driver and bus operator who after discovery, moved for summary judgment against plaintiff under CPLR 3212 for plaintiff's failure to establish a "serious injury" as required under the statutory threshold provision in the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 & Insurance Law 5102(d).

In addition to being an example of how CPLR 2106 is applied to allow otherwise inadmissible expert evidence, this decision is instructive with respect to the use of police accident reports and photographs in such cases.

On the plaintiff's standard of proof:

In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

On onus:

The defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra; see also Gaddy v Eyler, supra; Pirrelli v Long Is. R.R., 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]). Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Newton v Drayton, 305 AD2d 303, 760 NYS2d 38 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 56 [2d Dept 1992]).

But, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 27 AD3d 284, 813 NYS2d 56 [1st Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be [*4]true under the penalties of perjury. An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra).

The court found that the defendants had met their burden and proved that the plaintiff had not suffered a "serious injury":

Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, 4 NY3d 566 [2005]; Gaddy v Eyler, supra; Perez v Rodriguez, supra). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1998]).

Despite the critical evidence in the MRI reports being neither sworn nor affirmed, it was held admissible under CPLR 2106, eventually leading the plaintiff to successfully resist the CPLR 3212 motion:

CPLR 2106
Affirmation of truth of statement by attorney, physician, osteopath or dentist
The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit

Dr. Waxman's December 8, 2006 MRI lumbar and cervical spine medical reports are unaffirmed and unsworn and would usually be inadmissible in this motion (see Grasso v Angerami, supra; Offman v Singh, supra; CPLR § 2106.) However, they are admissible evidence here, because Dr. Waxman's MRI medical records were properly referenced and reviewed by defendants' medical expert (Dr. Feuer[FN2]) in his medical affirmation (see Pommells v Perez, 4 NY3d 566, 577, n 5 [2005]; Navedo v Jaime, 32 AD3d 788, 822 NYS2d 43, [1st Dept 2004]; Brown v Achy, 9 AD3d 30, 776 NYS2d 56 [1st Dept 2004]; Gonzalez v Vasquez, 301 AD2d 438, 754 NYS2d 7 [1st Dept 2003]; Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 443 [1st Dept 2002]). Angel's physician, Dr. Boppana, stated in his medical affirmation that he reviewed the [*6]plaintiff's MRI films[FN3] and incorporated their results in his conclusions.

Dr. Waxman's MRI reports indicated that plaintiff suffered a broad based disc herniation at L4-L5 with left foraminal stenosis and a disc bulge at L3-L4 with anterior thecal sac effacement, and multilevel disc bulging from C3-C4 through C6-C7 with ventral epidural space effacement.
...
Here, though the evidence presented by Angel does not rebut defendants' proof that he did not suffer serious injury under the Insurance Law § 5102 (d) categorizations of a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body function or system; or the 90/180-day category, the objective criteria and their norms as presented in Dr. Boppana's medical affirmation has raised material issues of fact as to whether or not Angel sustained injuries under the Insurance Law § 5102 (d) category of a significant limitation of use of a body function or system category (see Pommells v Perez at 577).

The defendants also moved for summary judgment on liability, and sought to lead photographs alleged to have been taken by another of the defendant bus company's employees. That attempt was not successful, despite attempts by counsel to affirm the photographs:

The defendants also offer prime facie photographs allegedly taken after the accident by another bus driver employed by the defendant Amboy Bus Company who was just passing by the accident (see Notice of Motion, Exhibit I, Affirmation in Opposition, Exhibit 4). This unidentified bus driver allegedly named "Carmen" is never properly identified, deposed nor submitted an affidavit to authenticate the photographs. Moreover, the defendant Davis when asked about the photographs he replied that he never saw the photos and was unaware how were taken (id., Exhibit G, at 35-36):

The Court holds these photographs are inadmissible on this motion. We rely upon the Appellate Division, First Department's recent holding in Coleman v Maclas, 61 AD3d 569, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]. The Court affirmed that "the [trial] court properly disregarded the uncertified police reports and unauthenticated photographs as they were inadmissible hearsay (see Figueroa v Luna, 281 AD2d 204, 206, 721 NYS2d 635 [2001] )." The Court held "Further, the affirmation by plaintiff's counsel, who had no personal knowledge of the accident, was not admissible evidence... (see Johnson v Phillips, 261 AD2d 269, 270-271, 690 NYS2d 545 [1999] )." [*8]

The defendants further sought to lead a police accident report, without calling either the police officer who had authored that report, or who had witnessed the immediate aftermath of the accident and witnessed spontaneous statements or declarations against interest made by persons who witness or who were involved in the accident. That attempt by the defendants to introduce the contents of the police accident report failed:

In addition, defendants (uncertified) copy of the New York State Department of Motor Vehicles Police Accident Report (MV-104AN (7/01)) is also inadmissible to prove liability. Uncertified police accident reports are inadmissible to indicate a parties liability because the police officer who prepared the report was not an eyewitness to the accident as it constitutes inadmissible hearsay, (see Coleman v Maclas, 61 AD3d 569, 877 NYS2d 297, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]; Figueroa v Luna, 281 AD2d 204,721 NYS2d 635 [1st Dept 2001]; Ann Connors v. Duck's Cesspoool Services, Ltd., 144 AD2d 329, 533 NYS2d 942 [1st Dept 1988]; Murray v Donlan, 77 AD2d 337, 433 NYS2d 184 [1st Dept 1980]).

Moreover, the Appellate Division, First Department also recently decided Soto-Maroquin v Mellet __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept, June 4 2009], (10 days after its decision on April 23, 2009 in Coleman v Maclas, supra) that uncertified police accident reports that contain the statements made by the parties to the police officer preparing the accident report and falls into a hearsay exception under "spontaneous statements" or "declaration against interests" are also inadmissible. (cf. Soto-Maroquin v Mellet, Sup Ct, NY County, October 14, 2008, Wooten J. Index No. 108798/07 [uncertified police report contained admission from defendant], affd __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept 2009] ["consideration of uncertified police report was harmless in view of defendant's passenger's affidavit attesting to what defendants object to in the police report, namely, that defendants' vehicle struck plaintiff's vehicle in the rear"]; compare Voskin v Lemel, 52 AD3d 503, 503, 859 NYS2d 489 [2d Dept 2008] ["plaintiff's case buttressed by the certified copy of the police accident report containing the defendant's admission that he did not see the plaintiff and struck him"]; 2 McCormick on Evidence 2d §§ 271 and 272).

The defendants' motion was denied.

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.

Second Department: Mother Telling Son Of Fall 3 Hours Later Clearly Not A Present Sense Impression

In Colombo v Sanfilippo 2009 NY Slip Op 02741 [61 AD3d 626] the Second Department refused to apply the present sense impression rule in a matter where the plaintiff's mother had fallen and had merely told her son three hours after the accident that she had fallen.

The plaintiff's affidavit submitted in opposition to the motion, in which he averred that, approximately three hours after the accident, his mother told him that she had fallen, did not identify the cause of the fall and, in any event, did not [*2]qualify as a present sense impression exception to the hearsay rule (see People v Vasquez, 88 NY2d 561, 575 [1996]; Matter of Talisveyber v Motor Veh. Acc. Indem. Corp., 16 AD3d 425 [2005]).

Practice Note: In New York State, the present sense impression must be expressed by the declarant during or near contemporaneously with the act being witnessed. Counsel should note the discussion of the additional requirement of reliability in the authorities cited.

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.