CPLR R. 4518

4518 and hearsay. You have to attach the records.

Wells Fargo Bank, N.A. v Sesey, 2020 NY Slip Op 02822 [App Div 2d 2020]

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted, inter alia, an attorney affirmation to which documents were appended purporting to be the note and an allonge. The plaintiff also submitted the affidavit of Nancy Chouanard, a vice president employed by the plaintiff. The attorney affirmation was insufficient to authenticate the documents purporting to be the note and an allonge. The Chouanard affidavit also failed to authenticate such documents. Furthermore, while Chouanard claimed that the plaintiff’s business records showed that the plaintiff received the original note endorsed to it as trustee on November 10, 2005, which would have been prior to the commencement of the Option One foreclosure action, Chouanard failed to identify what documents she relied upon to support that conclusory assertion, much less submit any properly authenticated business records. Even assuming that Chouanard’s affidavit was sufficient to establish a proper foundation for the admission of business records pursuant to CPLR 4518(a), the plaintiff failed to submit copies of the business records themselves. “[T]he business record exception to the hearsay rule applies to a writing or record’ (CPLR 4518[a]) . . . [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205 [citation omitted]). “While a witness may read into the record from the contents of a document which has been admitted into evidence (see HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 826-827), a witness’s description of a document not admitted into evidence is hearsay” (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774). Thus, Chouanard’s assertions as to the contents of the records were inadmissible hearsay as the documents themselves were not submitted (see id. at 774; JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513, 1516). A review of records maintained in the normal course of business does not vest an affiant with personal knowledge (see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d at 1517).

Bold is mine.

Similar holdings in HSBC Bank USA, N.A. v Dubose, 175 AD3d 1270 [2d Dept. 2019], Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2d Dept. 2019], Nationstar Mtge., LLC v Tamargo, 177 AD3d 750 [2d Dept. 2019], Wells Fargo Bank, N.A. v Springer, 2020 NYSlipOp 00176 [2d Dept. 2020], Nationstar Mtge., LLC v Cavallaro, 181 AD3d 688 [2d Dept. 2020], Deutsche Bank Natl. Trust Co. v Dennis, 2020 NYSlipOp 02039 [2d Dept. 2020]

O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 175 AD3d 540 [2d Dept. 2020]

Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record (see Werner v City of New York, 135 AD3d 740, 741 [2016]; Dyer v 930 Flushing, LLC, 118 AD3d 742, 742-743 [2014]).

Foundation without a document

Deutsche Bank Natl. Trust Co. v Kirschenbaum, 2020 NY Slip Op 01573 [1st Dept 2020]

While an employee may lay a business record foundation for documents without having personal knowledge of their contents (see Bank of Am., N.A. v Brannon, 156 AD3d 1 [1st Dept 2017]), here no business record is attached that supports the employee’s conclusion regarding when plaintiff came into possession of the note. This is insufficient (see Residential Credit Solutions, Inc. v Gould, 171 AD3d 638, 638-643 [1st Dept 2019]; Deutsche Bank Natl. Trust Co. v Guevara, 170 AD3d 603, 603-605 [1st Dept 2019]). Unlike the plaintiffs in Bank of N.Y. Mellon v Knowles (151 AD3d 596 [1st Dept 2017]) and Nationstar Mtge. LLC v Islam (168 AD3d 583 [1st Dept 2019]), plaintiff did not attach a copy of the note to its summons and complaint.

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.

Evidence

Federal Natl. Mtge. Assn. v Marlin, 2019 NY Slip Op 00095 [2d Dept. 2019]

When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, “[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 CPLR 3408[a]).
In support of those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, Fannie Mae submitted affidavits of foreclosure specialists employed by Seterus, Inc., its loan servicer. The foreclosure specialists attested that they were personally familiar with the record-keeping practices and procedures of Seterus, Inc., but failed to lay a proper foundation for the admission of records concerning the defendants’ payment history and default. Accordingly, Fannie Mae failed to demonstrate that the records relied upon in the affidavits were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; US Bank NA v Handler, 140 AD3d 948, 949). Since Fannie Mae’s motion was based on evidence that was not in admissible form (see HSBC Mtge. Servs., Inc. v Royal, 142 AD3d at 954), Fannie Mae failed to establish its prima facie entitlement to judgment as a matter of law, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference should have been denied, regardless of the sufficiency of the defendants’ papers in opposition (see id., citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
We agree with the Supreme Court’s determination to grant that branch of Fannie Mae’s motion which was to strike the defendants’ affirmative defenses and counterclaims. To the extent that those portions of the answer relate to Residential’s alleged lack of standing, they were properly stricken, and the defendants make no arguments on appeal regarding the remaining affirmative defenses and counterclaims.

The bold is mine.

Pennsylvania Lumbermens Mut. Ins. Co. v B&F Land Dev. Corp., 2019 NY Slip Op 00292 [2d Dept. 2019]

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643; Stathis v Estate of Karas, 130 AD3d 1008, 1009; Kliamovich v Kliamovich, 85 AD3d 867, 869). Under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d at 643 [citations omitted]). The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” (id. at 645).
Here, PLM failed to offer any explanation as to the unavailability of the primary evidence, i.e., the original policy. PLM also did not establish that the copy of the policy proffered at trial was a “reliable and accurate portrayal of the original” (id.). In that regard, during voir dire examination, Santoro acknowledged that he had compiled the copy of the policy proffered by PLM at trial based upon information contained in the underwriting file, and he could not explain the language discrepancy between that copy of the policy and the copy of the policy produced by PLM during discovery. Consequently, the Supreme Court should not have admitted into evidence the copy of the policy proffered by PLM at trial. The error was not harmless since, without the original policy or an accurate replication, PLM could not establish what locations were covered by the policy, what exclusions to coverage, if any, existed under the terms of the policy, or the insured’s responsibilities with respect to providing notice of the claim to PLM (see Stathis v Estate of Karas, 130 AD3d at 1011).

The bold is mine.

4518

Nationstar HECM Acquisition Trust 2015-2 v Andrews, 2018 NY Slip Op 08944 [2d Dept. 2018]

Here, in support of its cross motion, the plaintiff submitted, among other things, the affidavit of Stephen Craycroft, an assistant secretary of Nationstar Mortgage, LLC, who attested that the plaintiff was in possession of the note at the time of the commencement of this action. However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Craycroft under the business records exception to the hearsay rule (see CPLR 4518[a]), since Craycroft did not clearly attest that he was personally familiar with the plaintiff’s record-keeping practices and procedures (see Aurora Loan Servs., LLC v Komarovsky, 151 AD3d 924, 926; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849, 853; Aurora Loan Servs., LLC v Baritz, 144 AD3d 618, 620; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 685; U.S. Bank N.A. v Madero, 125 AD3d 757, 758; cf. Bank of N.Y. Mellon v Lopes, 158 AD3d 662, 663-664). Inasmuch as the plaintiff’s cross motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650; U.S. Bank N.A. v Madero, 125 AD3d at 758).

4518

City Natl. Bank v Foundry Dev. Group, LLC, 2018 NY Slip Op 02765 [2d Dept. 2018]

Contrary to the defendants' contention, the Supreme Court properly determined that certain exhibits presented at the inquest were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]). " 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'" (Cadlerock Joint Venture, L.P. v Trombley, 150 AD3d 957, 959, quoting Citibank, N.A. v Cabrera, 130 AD3d 861, 861). Here, the plaintiff's witness testified that she was personally familiar with the record keeping practices and procedures of the plaintiff and Imperial, and, thus, the plaintiff laid a proper foundation for the admission of the records (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639-640).

Was this a dare or an oversight

On December 18, 2013 the Appellate Division, Second Department decided Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 2013 NY Slip Op 08430 [2nd Dept. 2013]. In short, the Appellate Division held that a no-fault Plaintiff was not required to establish that its bills was a business record under CPLR 4518 to prove its prima facie case.

On January 24, 2014, in Horton Med., P.C. v Liberty Mut. Ins. Co., 2014 NY Slip Op 50116(U) [App. Term, 2nd, 11th & 13th Jud. Dists. 2014] the Appelalte Term decided an appeal where the plaintiff's motion was unopposed. The Appellate Term held "Upon a review of the record, we are in agreement with the Civil Court's determination that the affidavit by plaintiffs' billing manager in support of plaintiffs' motion for summary judgment failed to comply with CPLR 4518 (see Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006])"

Of note, the reasoning in Dan Med was rejected by the Appelalte Division in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.

On February 5, 2014, the Appellate Division decided New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014]. It held: "A medical provider is not required, as part of its prima facie showing, to demonstrate the admissibility of its billing records or to prove the truth of their content under the business records exception to the hearsay rule (see CPLR 4518[a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.,AD3d, 2013 NY Slip Op 08430, [2d Dept 2013])."

While the Horton decsion could have been an oversight, it also could have been an attempt to somehow distinguish Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.. But if that were the case New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014] put that to bed. But–and im not saying that this is the case–what if the Appellate Term (or any court for that matter) refused to follow precedent? What is the remedy? Recusal? Disband the Appellate Term–the Appellate Term would not exist but for the Appellate Division's say so. That, however, is not a remedy for a party. Should a party request recusal of an entire Appellate Term? I haven't seen that happen oustide of pro se cases.

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).

4518

CPLR R. 4518 Business records

Landmark Capital Invs., Inc. v Li-Shan Wang, 2012 NY Slip Op 02430 (1st Dept., 2012)

The record supports the finding that defendant Wang (defendant) was properly served. The detailed description of the service attempts on defendant and of the interior of defendant's building supported the determination that the process server was credible. Although the process server was under investigation for improper record keeping by the Department of Consumer Affairs, the relevant portions of the record support the finding that his version of facts was accurate (cf. Matter of Barr v Department of Consumer Affairs of City of N.Y., 70 NY2d 821 [1987]).

Plaintiff established its entitlement to judgment as a matter of law by relying in part on the original loan file prepared by its assignor. Plaintiff relied on these records in its regular course of its business (see Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336, 337 [2006], lv denied 7 NY3d 715 [2006]). Defendant failed to raise a triable issue as to whether plaintiff was "doing business in this state without authority," which, under Business Corporation Law § 1312(a), would preclude it from bringing suit. Although plaintiff often purchased debt held by New York debtors, this, as an activity carried on by an Ohio company with no offices or employees in New York, is not sufficient to constitute doing business under section 1312 (see Beltone Elecs. Corp. v Selbst, 58 AD2d 560 [1977]).

Not a business record: CPLR 4518 and a DVD

CPLR R. 4518 Business records

Lambert v Sklar, 2012 NY Slip Op 00755 (2nd Dept., 2012)

In opposition, the plaintiffs failed to raise a triable issue of fact. According to the deposition testimony of the decedent's widow, which was submitted by the defendants, she did not know the purpose of the payments identified in the check register. Moreover, even if the check register were the decedent's, it was inadmissible as a business record (see CPLR 4518[a]), and incompetent to prove that the corresponding checks were loans, rather than repayments of advances (see Matter of Roge v Valentine, 280 NY 268; Leask v Hoagland, 205 NY 171; Nappi v Gerdts, 103 AD2d 737; Shea v McKeon, 264 App Div 573; Bogatin v Brader, 243 App Div 856; Matter of Levi, 3 Misc 2d 746; In re Purdy's Will, 73 NYS2d 38 [Sur Ct 1947]; see also Nay v Curley, 113 NY 575, 577; Koehler v Adler, 78 NY 287). Given the plaintiffs failure to set forth admissible evidence raising a triable issue of fact as to whether the defendants made any material misrepresentations to the public administrator, the Supreme Court properly granted the defendants' motion for summary judgment, in effect, dismissing the cause of action alleging fraud, and, in effect, properly denied the plaintiffs' cross-motion for summary judgment, in effect, on the cause of action alleging fraud.

National Ctr. for Crisis Mgt., Inc. v Lerner, 2012 NY Slip Op 00758 (2nd Dept., 2012)

Additionally, the Supreme Court properly declined to consider a DVD recording submitted by the defendant in support of her motion for summary judgment, as it cannot be concluded that the video recording truly and accurately represented what the defendant purported it to show (see Zegarelli v Hughes, 3 NY3d 64, 69; see also People v Patterson, 93 NY2d 80, 85; cf. People v Byrnes, 33 NY2d 343, 349).