Hearsay / 4518 / 4519

Grechko v Maimonides Med. Ctr., 2019 NY Slip Op 06478 [2d Dept. 2019]

The defendants argue that the entries in the Coney Island Hospital records were admissible under the business records exception to the hearsay rule. “A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient” (Berkovits v Chaaya, 138 AD3d 1050, 1051; see CPLR 4518[a]). Here, although the entries were germane to the decedent’s diagnosis and treatment, the defendants failed to offer foundational testimony under CPLR 4518(a) or certification under CPLR 4518(c) (cf. Matter of Kai B., 38 AD3d 882, 884). Accordingly, the entries were not admissible under the business records exception to the hearsay rule.

If an entry in the medical records “is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to the diagnosis or treatment, as long as there is evidence connecting the party to the entry'” (Robles v Polytemp, Inc., 127 AD3d 1052, 1054, quoting Coker v Bakkal Foods, Inc., 52 AD3d 765, 766). Here, we agree with the Supreme Court’s determination to preclude so much of Rakhmanchik’s entry as stated that, according to the decedent’s primary care physician, the decedent signed an AMA form at the Medical Center, as the entry clearly states that the decedent’s primary care physician, not the decedent himself, was the source of the information contained therein (see Robles v Polytemp, Inc., 127 AD3d at 1054; cf. Amann v Edmonds, 306 AD2d 362, 363). However, we disagree with the court’s ruling that the plaintiff opened the door to the admission of Rakhmanchik’s entry with the testimony of the plaintiff’s expert physician. The expert did not testify to any conversations between the decedent’s primary care physician and Rakhmanchik, but only to the decedent’s own statements.

Moreover, we disagree with the Supreme Court that Uddin’s entry was admissible, as the defendants failed to establish that the decedent was the source of the information that he left the Medical Center after signing an AMA form (see Coker v Bakkal Foods, Inc., 52 AD3d at 766; Cuevas v Alexander’s, Inc., 23 AD3d 428, 429; Thompson v Green Bus Lines, 280 AD2d 468, 468; Ginsberg v North Shore Hosp., 213 AD2d 592, 592-593; Echeverria v City of New York, 166 AD2d 409, 410).

Additionally, we disagree with the Supreme Court’s determination that the deposition testimony of Uddin and Volovoy was admissible. Pursuant to CPLR 4519, otherwise known as the Dead Man’s Statute, “[u]pon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his [or her] own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a mentally ill person . . . concerning a personal transaction or communication between the witness and the deceased person or mentally ill person, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his [or her] own behalf, of the testimony of the mentally ill person or deceased person is given in evidence, concerning the same transaction or communication.” Here, both Volovoy and Uddin were defendants at the time they gave deposition testimony, making them interested parties under the statute (see Durazinski v Chandler, 41 AD3d 918, 920). Moreover, they both testified to transactions or communications with the decedent and sought to offer that testimony against the decedent’s estate. Accordingly, the Dead Man’s Statute applied to, and barred, the admission of their deposition testimony.

The defendants argue that the plaintiff waived the protections of the Dead Man’s Statute by eliciting the communications at issue. However, “[t]he executor does not waive rights under the statute by taking the opponent’s deposition” (Phillips v Kantor & Co., 31 NY2d 307, 313; see Wall St. Assoc. v Brodsky, 295 AD2d 262, 263). Additionally, although the defendants contend that Volovoy’s deposition testimony was properly admitted for impeachment purposes, deposition testimony may only be used to impeach a witness “so far as admissible under the rules of evidence” (CPLR 3117[a]; see Rivera v New York City Tr. Auth., 54 AD3d 545, 547). Contrary to the defendants’ contention, the declaration of the decedent did not fall within the declaration against interest exception to the hearsay rule because the defendants failed to establish that the subject statement was against the decedent’s interest when made (see Field v Schultz, 308 AD2d 505, 506). Moreover, where the Dead Man’s Statute renders a witness’s testimony inadmissible, “the fact that the testimony would fall within an exception to the hearsay rule is simply irrelevant” (Wall St. Assoc. v Brodsky, 295 AD2d at 263 [internal quotation marks omitted]).

Under the circumstances here, the erroneous admission of the entries contained in the Coney Island Hospital record and the deposition testimony of Uddin and Volovoy cannot be deemed harmless, as the entries and testimony related to the very issue to be determined by the jury, i.e., whether Orr and the Medical Center failed to recognize the severity of the decedent’s illness (see Cuevas v Alexander’s, Inc., 23 AD3d at 429). A new trial is therefore necessary.

HSBC Bank USA, Natl. Assn. v Green, 2019 NY Slip Op 06482 [2d Dept. 2019]

Here, the plaintiff established standing by submitting the note, the mortgage, and the endorsement of the note in blank, when it filed the complaint (see e.g. U.S. Bank Natl. Assn. v Cox, 148 AD3d 962, 963; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725, 726). However, Green correctly contends that the plaintiff failed to submit evidence establishing her default. Wilson failed to attach or incorporate any of Wells Fargo’s business records to her affidavit. Accordingly, her affidavit constituted inadmissible hearsay and lacked probative value (see Bank of N.Y. Mellon v Gordon, 171 AD3d 197).

The Supreme Court providently exercised its discretion in denying the plaintiff’s motion for leave to renew the motion for summary judgment on the complaint insofar as asserted against Green and for an order of reference. ” A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'” (Kamdem-Ouaffo v Pepsico, Inc., 133 AD3d 828, 828, quoting Elder v Elder, 21 AD3d 1055, 1055). Here, the plaintiff failed to provide a reasonable explanation for failing to provide the information contained in Brooks’s affidavit with the original motion (see Caffee v Arnold, 104 AD2d 352). In any event, Brooks’s affidavit failed to establish Green’s default. Thus, her affidavit would not have changed the prior determination.

We also agree with the Supreme Court’s determination that the plaintiff failed to meet its prima facie burden at trial. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (Citibank, N.A. v Cabrera, 130 AD3d 861, 861; see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652). At the trial in this case, Wiggins testified only that he had access to Wells Fargo’s computerized records. He did not testify that he was familiar with Wells Fargo’s practices in making those records, and he failed to state that he had any knowledge regarding the plaintiff’s records. Moreover, the plaintiff did not attempt to introduce any of the relevant records into evidence.

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