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.


Saccone v Gross, 2011 NY Slip Op 04444 (App. Div., 2nd 2011)

The plaintiffs' contention that the verdict was contrary to the weight of the evidence also is without merit. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (see Mancusi v Setzen, 73 AD3d 992, 993; Nicastro v Park, 113 AD2d 129, 134). " The jury's resolution of conflicting expert testimony is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts'" (Mancusi v Setzen, 73 AD3d at 993 quoting Speciale v Achari, 29 AD3d 674, 675). " Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert'" (Morales v Interfaith Med. Ctr., 71 AD3d 648, 650 quoting Ross v Mandeville, 45 AD3d 755, 757; see Segal v City of New York, 66 AD3d 865, 867). It is within the province of the jury to determine an expert's credibility (see Monroy v Glavas, 57 AD3d 631, 632; Cohen v Kasofsky, 55 AD3d 859, 860). Thus, since the jury was entitled to accept the opinion of the respondents' experts, there is no basis to disturb its determination.  

The plaintiff was properly precluded from offering the Physicians' Desk Reference (hereinafter the PDR) into evidence because the proffered evidence constituted inadmissible hearsay (see Spensieri v Lasky, 94 NY2d 231, 234; Hinlicky v Dreyfuss, 6 NY3d 636; Winant v Carras, 208 AD2d 618, 620).

Azevedo v Platform Taxi Serv., Inc., 2011 NY Slip Op 03985 (App. Div., 2nd 2011)

The defendants failed to meet their prima facie burden of showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants submitted certain photographs depicting the injured plaintiff's alleged injuries. However, the photographs were not in admissible form (cf. Lewis v General Elec. Co., 145 AD2d 728, 729). Without the photographs, the defendants' other submissions in support of their motion for summary judgment were insufficient to establish, prima facie, the defendants' entitlement to judgment as a matter of law (see Rulison v Zanella, 119 AD2d 957, 957-958; Prieston v Massaro, 107 AD2d 742, 743; Savage v Delacruz, 100 AD2d 707, 707-708; see also Slater v Town of Rochester, 31 AD2d 590; cf. Sidibe v Cordero, 79 AD3d 536, 536; Baker v Thorpe, 43 AD3d 535, 537; Hutchinson v Beth Cab Corp., 207 AD2d 283, 283-284; Edwards v DeHaven, 155 AD2d 757, 758; Koppelmann v Lepler, 135 AD2d 507).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

Guccione v Guccione, 2011 NY Slip Op 03997 (App. Div., 2nd 2011)

Moreover, the nonparty purchaser of the subject property does have an interest in the property as contemplated by RPAPL 1501(4) and, in this regard, is a necessary party to this action, since his or her interest in the property would be affected by any judgment rendered herein (see RPAPL 1511[2]; CPLR 1001[a]; Censi v Cove Landings, Inc., 65 AD3d 1066, 1067-68; Migliore v Manzo, 28 AD3d 620, 621; Weinstein-Korn-Miller, NY Civ Prac ¶ 1001.03 [2d ed]; see also CPLR 1003). This action may be maintained if the purchaser is joined as a party plaintiff, the plaintiff demonstrates that the purchaser assigned his or her cause of action to the plaintiff (see Jean v Joseph, 41 AD3d 657, 658; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420), or the plaintiff is otherwise authorized to seek cancellation and discharge of the mortgage on the purchaser's behalf pursuant to CPLR 1004 (see Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 67 AD3d 945, 946; Spectra Audio Research, Inc. v Chon, 62 AD3d 561, 564). The plaintiff, however, failed to make such a showing on her motion and, thus, the Supreme Court properly determined that the plaintiff was not entitled at this juncture to summary judgment under RPAPL 1501(4). 

To the extent the plaintiff sought declaratory relief based upon RPAPL 1921, the plaintiff demonstrated that she has an "interest in the mortgage or the debt or obligation secured thereby" such that she may maintain a cause of action (RPAPL 1921[2]). However, the plaintiff failed to establish, prima facie, that the mortgage was satisfied pursuant to RPAPL 1921, since her evidence consisted of statements concerning a transaction or communications with the deceased Mr. Guccione (see CPLR 4519), or was belatedly submitted in her reply brief and not addressed by her adversary (see Batista v Santiago, 25 AD3d 326; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 206; Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 678).

To the extent the plaintiff sought declaratory relief based upon RPAPL 1931, the plaintiff demonstrated that she is the mortgagor of the subject property, enabling her to proceed under that section (see RPAPL 1931[1]). However, the plaintiff failed to show that the mortgage was "ancient" (see RPAPL 1931[5]; Matter of Grasso [Trans-American Mgt. Corp.-Ciembroniewicz], 168 AD2d 713; Matter of Schwartz, 21 Misc 2d 845; Matter of Addesso, 69 NYS2d 702). Thus, the Supreme Court properly determined that the plaintiff was not entitled to summary judgment declaring the mortgage invalid and directing its cancellation under RPAPL 1921 or 1931.

Merriman v Intergrated Bldg. Controls, Inc., 2011 NY Slip Op 04013 (App. Div., 2nd 2011)

The Supreme Court, however, should have also denied the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). In response to the plaintiff's prima facie showing of his entitlement to judgment as a matter of law, the defendants submitted, inter alia, a report prepared by a neurologist who examined the plaintiff approximately six weeks after the accident. In recounting the circumstances of the accident, the report recited that, while descending the ladder on which he had been working, the plaintiff "missed a step." If credited, this statement, which is inconsistent with the account set forth in the plaintiff's affidavit in support of his motion for summary judgment, would support a finding that the plaintiff's alleged negligence was the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280).

The statement in the medical report was not germane to the diagnosis or treatment of the plaintiff and, therefore, at trial, it would not be admissible for its truth under the business records exception to the hearsay rule (see CPLR 4518; Williams v Alexander, 309 NY 283). Nonetheless, the requirement that evidentiary proof be submitted in admissible form is " more flexible'" when applied to a party opposing a motion for summary judgment than it is when applied to the moving party (Zuckerman v City of New York, 49 NY2d 557, 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068). Accordingly, "proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see Phillips v Joseph Kantor & Co., 31 NY2d 307), particularly when the inadmissible evidence does not provide the sole basis for the denial of summary judgment (see Phillips v Kantor & Co., 31 NY2d at 310, 315). Such proof is permissible as long as the nonmoving party is able to " demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form'" (Zuckerman v City of New York, 49 NY2d at 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d at 1068; see Moffett v Gerardi, 75 AD3d 496, 498).

Here, the defendants demonstrated an acceptable excuse for failing to elicit admissible evidence from the plaintiff's treating neurologist at this stage of the proceedings. Moreover, even without considering the inadmissible evidence in the neurologist's report, the plaintiff's equivocal responses at his deposition regarding the possibility that he "missed a step" while descending the ladder, as well as the defendants' potential ability to present the evidence contained in the medical report in admissible form at trial (see Williams v Alexander, 309 NY at 285 n), establish the arguable existence of a triable issue of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Accordingly, the defendants' submissions were sufficient to raise a triable issue of fact, requiring the denial of the plaintiff's motion.

Devito v Feliciano, 2011 NY Slip Op 04366 (App. DIv., 1st 2011)

The trial court did not err in excluding certain medical records of plaintiff, as they were not properly certified and never given to defendants for inspection prior to trial (see CPLR 3122-a). Nor did the trial court err in declining to provide a missing witness charge since plaintiff did not satisfy the elements that are a prerequisite for receiving the charge (see Getlin v St. Vincent's Hosp. & Med. Ctr. of N.Y., 117 AD2d 707, 708-709 [1986]; NY PJI 1:75, Comment, Caveat 2).

Jiminian v St. Barnabas Hosp., 2011 NY Slip Op 04371 (App. DIv., 1st 2011)

The motion court correctly determined that following defendants' showing of entitlement to judgment as a matter of law, plaintiff demonstrated the existence of triable issues of fact precluding dismissal of the action as against defendants through plaintiff's own testimony and the report submitted by his expert. Plaintiff's testimony concerning his wife's complaints of dizziness and shortness of breath are res gestae, admissible as simple expressions of suffering by the injured party, who is no longer available by reason of her death, which occurred less than 12 hours following her complaints (see 58 NY Jur 2d, Evidence and Witnesses § 338; Tromblee v North Am. Acc. Ins. Co., 173 App Div 174, 176 [1916], affd 226 NY 615 [1919]). Accordingly, triable issues exist as to whether defendant hospital departed from good and accepted medical practice in failing to properly investigate and address the decedent's complaints.

The report of plaintiff's expert also conflicts with the conclusions of Leong's expert on the issue of whether the decedent was at an increased risk for a pulmonary embolism secondary to deep vein thrombosis, whether Leong failed to properly recognize and treat that risk, and whether said failure was the proximate cause of death (see e.g. Bradley v Soundview Healthcenter, 4 AD3d 194 [2004]).

IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 2011 NY Slip Op 04306 (App. DIv., 1st 2011)

IRB met its prima facie burden of establishing entitlement to summary judgment with evidence that defendant Portobello International Limited issued the Global Note, defendant guarantors guaranteed it, IRB purchased it and Portobello defaulted (see IRB-Brazil Resseguros, S.A. v Inepar Investments, S.A., __ AD3d __, 2011 NY Slip Op 03275; IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 68 AD3d 576, 577 [2009]; Eastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lv denied 86 NY2d 711 [1995]).

In opposition, defendants fail to raise issues of fact regarding the ownership or location of the Global Note. The record shows that defendants accepted the initial loan from IRB, paid interest on the Global Note for a number of years and, at the time of their default, negotiated new terms with IRB, implicitly admitting that IRB was the owner of the note. Moreover, defendants sued IRB — in its capacity as owner of the Global Note — in a separate action. Defendants cannot now be heard to object to the ownership which they embraced when it suited them (see RPI Professional Alternatives, Inc. v Citigroup Global Mkts. Inc., 61 AD3d 618, 619 [2009]).

Equally unavailing are defendants' arguments concerning plaintiff's inability to produce the physical note where, as here, defendants have waived presentment numerous times. These waivers excuse any requirement that the instrument sued upon be presented in connection with subsequent litigation against Portobello as issuers, or against the guarantors (see Banco Nacional de Mexico v Ecoban Fin., 276 AD2d 284 [2000]).

Defendants have failed to show they discharged their debt. Defendants' primary argument is that the JP Morgan document establishes payment. This document, however, which defendants never authenticated through anyone at JP Morgan, and which is offered for the truth of the matter asserted, is impermissible hearsay and does not fall within an exception to the hearsay rule (see e.g. Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007] [document not "so patently trustworthy as to be self-authenticating"]). Accordingly, it is insufficient to defeat the summary judgment motion (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]; Van Dina v City of New York, 292 AD2d 267, 268 [2002]).

Defendants seek to avoid summary judgment by claiming a need for further discovery. Defendants did not demonstrate, however, that there was a likelihood that there is relevant evidence in IRB's exclusive knowledge, that further discovery might reveal the existence of such evidence, or that they made a reasonable attempt, prior to the motion, to pursue other means of discovering the information now claimed to be necessary (see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 162-163 [2008], lv denied 11 NY3d 716 [2009]; Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557 [2007]).

The court properly denied defendants' motion for leave to amend their answers because the proposed counterclaims sounding in fraud plainly lacked merit (see R & R Capital LLC v Merritt, 78 AD3d 533 [2010]).

The court properly applied the statutory interest rate to plaintiff's award of post-judgment interest because, although the terms of the Global Note clearly contemplate payment of interest through satisfaction of the principal, it does not "clearly and unequivocally" specify a post-judgment rate. Accordingly, the motion court correctly "merged" the contract into the judgment and applied the statutory interest rate (Marine Mgt. v Seco Mgt., 176 AD2d 252, 253 [1991], affd 80 NY2d 886 [1992]).


CPLR § 4519 (Dead Man’s Statute); CPLR R. 4405

CPLR § 4519. Personal transaction or communication between witness and decedent or mentally ill person

CPLR R. 4405.  Time and judge before whom post-trial motion made

Peterson, Matter of, v See, 2009 NY Slip Op 29011 (App. Term, 2nd)

Initially, we note that contrary to defendant's contention,
plaintiff's posttrial motion to set aside the verdict was not untimely.
Although CPLR 4405 requires such motions to be made within 15 days
"after decision, verdict or discharge of the jury," the time limit is
not absolute, and a posttrial motion is not untimely if it is made
within an extended time period set by the trial court without objection

(see Manning v BrookhavenMem. Hosp. Med. Ctr., 11 AD3d 518
[2004]). The City Court set forth a motion schedule, and there is
nothing in the record to indicate that any objection was made to such
schedule. In any event, it does not appear that there was any prejudice
suffered as a result of the delay in presenting written arguments to
the court (see e.g. Brown v Two Exch. Plaza Partners, 146 AD2d 129 [1989]).

In support of the posttrial motion, plaintiff pointed to
numerous instances where defendant's testimony was in violation of the
Dead Man's Statute (CPLR 4519), which prohibits a party who has an
interest in the outcome of the proceeding from testifying about
communications or transactions with a decedent
. CPLR 4519 (a) provides,
in pertinent part, as follows: 

"Upon the trial of an action . . . a party or a person interested
in the event . . . shall not be examined as a witness in his own behalf
or interest . . . concerning a personal transaction or communication
between the witness and the deceased person . . . except where the
executor . . . is examined in his own behalf . . . concerning the same
transaction or communication." 

In the instant case, the burden of establishing the defense of payment was upon defendant (see Lynch v Lyons,
131 App Div 120 [1909]). The sole evidence offered in support of his
defense was his own testimony regarding his payments to the decedent,
unsupported by any documentation. This testimony clearly violated CPLR
In an action brought by the representative of a decedent's estate
on a promissory note, the maker is not permitted to testify regarding
his or her personal transactions with the deceased payee (Matter of Callister, 153 NY 294 [1897]; Alexander v Dutcher, 70 NY 385 [1877]; Cody v Hadcox,
98 App Div 467 [1904]) unless the representative "is examined in his
own behalf . . . concerning the same transaction" (CPLR 4519).
Plaintiff herein did not waive the protection of the statute nor, as
defendant suggests, was plaintiff using the statute "as a sword rather
than a shield" (Matter of Wood, 52 NY2d 139, 145 [1981]).
Plaintiff's prima facie case was established via the documentary
evidence submitted on plaintiff's direct case, which evidence did not
"open the door" to defendant's testimony regarding his transactions
with the decedent

In the instant case, the admission of defendant's testimony was
improper as it concerned "a personal transaction or communication
between the witness and the deceased person" (CPLR 4519) and was highly
prejudicial to plaintiff. Accordingly, the trial court did not err in
granting plaintiff's motion to the extent of setting aside the verdict
and ordering a new trial.

The bold is mine.

CPLR § 4519

CPLR § 4519 Personal transaction or communication between witness and decedent or mentally ill person

Stewart v Maitland, 2009 NY Slip Op 00051 (App. Div., 2nd)

Judgment, Supreme Court, New York County (Karla Moskowitz, J.),
entered November 7, 2007, awarding plaintiff $2,866,402.75 against
defendants Maitland, Guida, International Registries and Oban,
unanimously affirmed, with costs.

Since plaintiff's counsel's opening statement at trial was not
part of the evidence, it did not "open the door" to conversations
between the decedent and the judgment debtors herein, or otherwise
constitute a waiver of the provisions of CPLR 4519, concerning the
subject memorandum of agreement
(see Matter of Wood, 52 NY2d 139 [1981]; cf. Matter of Beradini, 238 App Div 433, 435 [1933], affd 263 NY 627 [1934]).

The bold is mine.