4518 germane to diagnosis or treatment/police report

CPLR R. 4518

Sermos v Gruppuso, 2012 NY Slip Op 03623 (2nd Dept., 2012)

Initially, we observe that the notations in the hospital record upon which the defendants rely were not attributed to the injured plaintiff. In any event, even if the subject notations were statements attributable to him, none of these notations was germane to his diagnosis or treatment and, at trial, would not be admissible for their truth under the business records exception to the hearsay rule (see CPLR 4518; People v Ortega, 15 NY3d 610; Williams v Alexander, 309 NY 283; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897; Carcamo v Stein, 53 AD3d 520). The inadmissibility of these notations is especially apt where, as here, such evidence is the sole proffered basis for the denial of summary judgment (see Phillips v Kantor & Co., 31 NY2d 307, 310), and where the nonmoving party is not able to demonstrate an acceptable excuse for its failure to tender that evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897; Allstate Ins. Co. v Keil, 268 AD2d 545, 545-546).

Accordingly, the Supreme Court properly excluded the medical records from its consideration, and properly held that the defendants failed to raise a triable issue of fact in opposition to the plaintiffs' motion (see Monteleone v Jung Pyo Hong, 79 AD3d 988; Joseph v Hemlok Realty Corp., 6 AD3d 392, 393; Allstate Ins. Co. v Keil, 268 AD2d 545; Schiffren v Kramer, 225 AD2d 757; Henderson v L & K Collision Corp., 146 AD2d at 571).

Hazzard v Burrowes, 2012 NY Slip Op 03409 (2nd Dept., 2012)

Moreover, the police accident report was inadmissible, as it was not certified as a business record (see CPLR 4518[a]), and the statements by both the appellant and Burrowes were self-serving, did not fall within any exception to the hearsay rule, and bore upon the ultimate issues of fact to be decided by the jury (see Noakes v Rosa, 54 AD3d 317, 318; Casey v Tierno, 127 AD2d 727, 728).

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