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."

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.