CPLR R. 4518

CPLR R. 4518 Business records

Kamolov v BIA Group, LLC2010 NY Slip Op 09890 (App. Div., 2nd 2010)

The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1). In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law on that cause of action, the defendants raised a triable issue of fact as to the manner in which the accident occurred (see e.g. Kumar v Stahlunt Assoc., 3 AD3d 330Park v Ferragamo, 282 AD2d 588; Avendano v Sazerac, Inc., 248 AD2d 340, 341). In this regard, the plaintiff failed to demonstrate that relevant portions of the medical records submitted by the defendants in opposition to his motion constituted inadmissible hearsay. The statements in the records regarding the manner in which the accident occurred were germane to the diagnosis and/or treatment of the plaintiff, and were properly considered as business records (see Harrison v Bailey,AD3d, 2010 NY Slip Op 09221 [2d Dept 2010];see also Rodriguez v Piccone, 5 AD3d 757, 758; Wright v New York City Hous. Auth., 273 AD2d 378, 379; Eitner v 119 W. 71st St. Owners Corp., 253 AD2d 641, 641-642). The plaintiff's remaining challenges to the defendants' reliance on the business records exception to the hearsay rule were not raised in the Supreme Court (see Buckley v J.A. Jones/GMO, 38 AD3d 461, 463) and, in any event, are without merit. Furthermore, the challenged statements set forth in the ambulance report also were admissible on the independent ground that they constituted admissions by the plaintiff, since they are inconsistent with his current account of the accident and the statements were satisfactorily connected to him (see generally Preldakaj v Alps Realty of NY Corp., 69 AD3d 455, 456-457).

Matter of Carothers v GEICO Indem. Co., 2010 NY Slip Op 09256 (App. Div., 2nd 2010)

The testimony of an employee of the company that handled the plaintiff's medical billing was insufficient to lay a foundation for the admission of the claim forms under the business records exception of the hearsay rule (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644). Such records were inadmissible because the billing company did not create the records and there was no showing that its employee was familiar with the particular record- keeping procedures of the plaintiff (see West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Further, although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations (see People v A & S DiSalvo, Co., 284 AD2d 547, 548; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727). Here, the billing company's mere printing and mailing of the documents to the insurer did not establish that the documents were incorporated into its records or that it relied upon the records in its regular course of business (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494,495). Since the subject documents were inadmissible, the plaintiff failed to establish its prima facie case, and the Appellate Term properly reversed the judgment in the plaintiff's favor

Harrison v Bailey2010 NY Slip Op 09221 (App. Div., 2nd 2010)

The Supreme Court erred in granting the plaintiff's motion for summary judgment on the issue of liability. While the plaintiff established his prima facie entitlement to summary judgment on the issue of liability (see generally Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 562), the defendants' proffered accident report, which contained a statement from Bailey that the plaintiff had crossed into Bailey's lane, causing the accident, raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Bradley v Ibex Constr., LLC, 54 AD3d 626, 627). Contrary to the plaintiff's contention, the accident report was admissible evidence under the business record exception to the rule against hearsay. While an unsworn accident report, by itself, does not constitute evidence in admissible form sufficient to defeat a motion for summary judgment (see Morgan v Hachmann, 9 AD3d 400, 401; Hegy v Coller, 262 AD2d 606), it may be admissible in evidence if it qualifies as a business record (see Bradley v IBEX Constr., LLC, 54 AD3d at 627; cf. Bendik v Dybowski, 227 AD2d 228, 229). Here, the affidavit of Atlantic's Safety Manager established the elements required for the admissibility of the accident report as a business record pursuant to CPLR 4518(a), namely, that the report (1) was required of Bailey as a condition of his employment, (2) was made at or about the time of the accident, and (3) was maintained by Atlantic in the regular course of its business (see Bradley v IBEX Constr., LLC, 54 AD3d at 627; Galanek v New York City Tr. Auth., 53 AD2d 586;Bishin v New York Cent. R.R. Co., 20 AD2d 921). Once admissible, any challenges to the report extend only to the weight it will be given (see CPLR 4518[a]). Here, the order dated August 1, 2008, only precluded Bailey from "testifying at the trial of the action." Such language cannot be read as precluding Bailey from opposing a motion for summary judgment through the submission of documentary evidence. Moreover, the language of the order of preclusion does not prohibit Atlantic, as Bailey's former employer, from proffering any form of evidence at any time in the action. Indeed, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Jaffe v Hubbard, 299 AD2d 395, 396). Had the Supreme Court intended to preclude Bailey from proffering any forms of evidence, as the plaintiff maintains, it could have done so in the order dated August 1, 2008, by specifically precluding all forms of evidence or by striking Bailey's answer outright under CPLR 3126(3).

J.D.M. Imports Co., Inc. v Hartstein, 2010 NY Slip Op 09186 (App. Div., 1st 2010)

The court correctly found that plaintiff's computer database was a business record (see Ed Guth Realty v Gingold, 34 NY2d 440, 451 [1974]), and then properly admitted a print-out from the database (see People v Weinberg, 183 AD2d 932, 933 [1992], lv denied 80 NY2d 977 [1992]; see also Guth, 34 NY2d at 452).

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