The EUO bust statement as a business record

Charles Deng Acupuncture, P.C. v Titan Ins. Co., 2016 NY Slip Op 26211 (Civ. Ct. Kings Co. 2016)

The Court here  stated the following:

(1) “The only remaining issue before the Court is whether or not the EUO transcripts allegedly generated at the scheduled EUOs are business records which may be used to show that the respective providers failed to appear at their scheduled EUOs, and the weight to give these records if they are admissible.”

(2) “There is no question that the certified EUO transcripts can be used in a motion for summary judgment (see MML Med. Care, P.C. v Praetorian Ins. Co. 2014 NY Slip Op 51792[U]; Active Chiropractic, P.C. v Praetorian Ins. Co. 2014 NY Slip Op 50634[U], Active Chiropractic, P.C. v Praetorian Ins. Co. 2014 NY Slip OP 50634[U]), but there appears to be no cases on “all fours” concerning the use of such EUO transcripts at trial.”

I would submit that the case  Allstate Ins. Co. v. Pierre, 123 A.D.3d 618, 618 (1st Dept. 2014)(“Plaintiff also established that the statements on the record were business records”) would have easily disposed of the issue in this case   What is flustering to me is that the Court never cites to Pierre and it looks like Defendant failed to cite to the case.

Two more comments here that I want to share.  This case underscores why it is worth the extra $100 (per no show) to obtain a bust statement.  First, you do not have “the partner affirmation”, which the Appellate Term has continuously rejected.  One wonders if that affirmation is tantamount to legal malpractice at this point.  Second, you have a documentary basis for asserting the fact of the no-show.  If the case goes to trial, you have evidence that can prove the defense.  Counsel here for defendant properly represented their client in this regard.

A final confession here.  For many years, I was not sold on the bust statement.  I have also proven that a well worded affidavit can meet even the demanding Appellate Term Second Department standard for a no-show.  But those “partner affidavit” cases admittedly have scared me and many others out there.  A bust statement is just a better practice because of its durability and contemporaneity of the event being recorded.    The old adage comes to play:  “fool me once, shame on you.  fool me twice, shame on me.”

A Wagman/Bradshaw foundation is necessary for EMG/NCV results

Ramjit v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 26153 (App. Term 2d Dept. 2016)
“In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, liability had been determined, and the matter went to trial on the issue of damages. Over defendant’s objection, the Civil Court admitted into evidence electrodiagnostic test reports which had been prepared by a doctor who did not testify. The court determined that the records were admissible pursuant to CPLR 3122-a and CPLR 4532-a. Plaintiff’s examining doctor testified that his range of motion testing revealed restrictions as compared to normal in plaintiff’s cervical spine. However, he expressly stated that his diagnosis of cervical and lumbar radiculopathy “was based upon the electrodiagnostic testing reports.” The witness admitted that he had not performed the electrodiagnostic tests, and never testified that he had interpreted the data himself. Following the close of defendant’s case, the jury returned a verdict in favor of plaintiff, finding that plaintiff had sustained serious injuries under the significant limitation of use and consequential limitation of use categories of Insurance Law § 5102 (d). As limited by its brief, defendant appeals from so much of the judgment, entered upon the jury’s verdict, as awarded plaintiff the principal sum of $50,000.”

It is not clear whether plaintiff’s expert witness relied only upon the raw data contained in the reports (see CPLR 4532-a) or whether he relied, to any extent, upon the interpretations and diagnosis of the reporting doctor also set forth in the reports. “A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence” (D’Andraia v Pesce, 103 AD3d 770, 771 [2013]; see Clevenger v Mitnick, 38 AD3d 586 [2007]; DeLuca v Ding Ju Liu, 297 AD2d 307 [2002]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Plaintiff did not demonstrate that the reports fell within an exception to the rule against hearsay and, upon a review of the record, we cannot conclude that any cumulative effect of the jury’s access to the electrodiagnostic test reports was harmless error (see Clevenger, 38 AD3d at 587).  Thus, contrary to the Civil Court’s finding, the electrodiagnostic test reports should not have been admitted.

This is pretty large for the simple fact that if the testifying expert cannot read the raw data that an EMG/NCV produces, then the expert does not have a valid opinion.

It is not hearsay: 4518 and 4539

Brand Med. Supply, Inc. v Infinity Ins. Co., 2016 NY Slip Op 50738(U)(App. Term 2d Dept. 2016)

(1) “In support of its defense of exhaustion of the policy limits, defendant unsuccessfully attempted to have the applicable insurance policy’s declaration page, which set forth, among other things, the coverage limits of the policy (see e.g. Matter of Government Empls. v Ally, 106 AD3d 736 [2013]; Matter of State Farm Mut. Auto. Ins. Co. v Gray, 68 AD3d 1002 [2009]), admitted into evidence. Upon a review of the record, we find that the Civil Court erred in excluding the insurance policy declaration page from evidence. Defendant was not required to lay a CPLR 4518 (a) foundation for the declaration page, since a declaration page is not hearsay, but rather, as part of an insurance contract, it “has independent legal significance and need only be authenticated to be admissible””

(2) “Here, the testimony of defendant’s senior no-fault representative sufficiently identified the document as an accurate representation of the declaration page which defendant maintained electronically (see CPLR 4539 [a]; Kaliontzakis v Papadakos, 69 AD3d 803[2010]). Furthermore, in describing defendant’s procedure for generating a declaration page, defendant’s witness satisfactorily set forth the “manner or method in which tampering or degradation of the reproduction is prevented” (CPLR 4539 [b]).”

What I want to know is why counsel could not get the document in as a business record?  I am very much curious as to what happened here.  Very curious.

The hospital record admission is admissible (not necessarily as a business record)

Robles v Polytemp, Inc., 2015 NY Slip Op 03341 (2d Dept. 2015)

“The plaintiff contends that the Supreme Court erred in denying his request, made at the outset of the trial on the issue of damages, to redact entries in his hospital records which indicated that he was not wearing a seat belt at the time of the subject accident. A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule only if the entry is germane to the diagnosis or treatment of the patient (see Gunn v City of New York, 104 AD2d 848, 849). However, if the entry 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 diagnosis or treatment, as long as there is “evidence connecting the party to the entry”.

Watering down 4518(a) to historic lows

Portfolio Recovery Assoc., LLC v Lall, 2015 NY Slip Op 03284 (1st Dept. 2015)

For anyone who is worried about what a reversal of Vivanne Etienne and the professional affidavit signing doctor could mean, you only need to read Portfolio to see what CPLR 4518(a) really means in the world of assigned debt.

(1) “Plaintiff’s proof of the underlying debt obligation was shown through defendant’s testimony that he used the credit card issued by plaintiff’s assignor and by the self-authenticating account statements (see Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336 [1st Dept 2006], lv denied 7 NY3d 715 [2006]).”

Key line from Merrill Lunch

(“The amount of the indebtedness was established by the self-authenticating monthly statements of account sent to defendants and setting forth the balance due on the loan (see Elkaim v Elkaim, 176 AD2d 116, 117 [1991], appeal dismissed 78 NY2d 1072 [1991]). Moreover, a proper business records foundation for these statements was laid by plaintiff’s witness, who testified, inter alia, that plaintiff relies on these statements in the regular course of its business even though they were prepared not by plaintiff but for plaintiff by a sister company“)

(2) “Evidence of the assignment of defendant’s account was the affidavit of sale, which, although created by the assignor, was properly introduced as a business record through the testimony of plaintiff’s employee (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 [1st Dept 2012]). Plaintiff’s reliance on documents of this type was a sufficient basis on which to permit its employee to lay the [*2]foundation for the admission of the affidavit of sale; contrary to defendant’s contention, it was not necessary that there be a special relationship between plaintiff and its assignor.”

This is a sad case on the state of evidence law in this state.  Allowing a purchaser of debt to lay a foundation for the admission of an original creditor’s documents is patently unfair, especially when the debt purchaser has no knowledge of what the original creditor did.

This case conflicts with: Unifund CCR Partners v. Youngman, 89 A.D.3d 1377 (4th Dept. 2011)

The denial need not be authenticated as a busines record

Jesa Med. Supply, Inc. v NYC Tr. Auth., 2013 NY Slip Op 52007(U)(App. Ter 2d Dept. 2013)

“Contrary to plaintiff’s argument, defendant was not required to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. Defendant did not submit the denials as memoranda “of any act, transaction, occurrence, or event” recorded therein (CPLR 4518 [a]; see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”

Claims documents considered as business records and unsuccessful mailing challenge

Preferred Mut. Ins. Co. v Donnelly, 2013 NY Slip Op 07283 (4th Dept. 2013)

(1) CPLR 4518 (a) challenge:

“We conclude that plaintiff met its initial burden of establishing that the lead exclusion was properly added to the policy and that notice of the lead exclusion amendment was provided to Donnelly. Contrary to Jackson’s contention, plaintiff submitted evidence in admissible form to support its motion. Although many of the documents appended to the attorney affirmation were not in admissible form (see KOI Med. Acupuncture v State Farm Ins. Co., 16 Misc 3d 1135[A], 2007 NY Slip Op 51705[U], *2; see generally CPLR 4518 [a]), we conclude that the affidavit from plaintiff’s Office Services Supervisor was sufficient to lay a proper foundation for the business records attached thereto (see CPLR 4518 [a]; cf. Unifund CCR Partners v [*2]Youngman, 89 AD3d 1377, 1378, lv denied19 NY3d 803; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331; see generally People v Kennedy, 68 NY2d 569, 579-580).”

(2) Mailing challenge:

This is interesting and should find its way in motions where mailing is challenged.  Perhaps another dilution in the “art” of mailing litigation, and I would argue a significant lowering of the mailing hurdle

“With respect to the substance of the attachments, we conclude that the documents established as a matter of law that the lead exclusion was properly added to Donnelly’s insurance policy and that Donnelly was notified of that amendment. Although plaintiff did not submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that Donnelly received the notice (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680; see Nocella v Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877, 878). Contrary to the contention of Jackson, the evidence submitted by plaintiff established that the “office practice [was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly addressed and mailed” (Nassau Ins. Co. v Murray, 46 NY2d 828, 830; see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229-230; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing. The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot.”

“While we agree with the dissent that there was no evidence submitted of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office (see Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227, 228-229; Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375; cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656), we do not deem the absence of such evidence fatal to plaintiff’s motion in light of the detailed description of all of the other office practices geared toward ensuring the likelihood that the notices were always properly addressed and mailed (cf. Hospital for Joint Diseases, 284 AD2d at 375; L.Z.R. Raphaely Galleries v Lumbermens Mut. Cas. Co., 191 AD2d 680, 681-682; Lumbermens Mut. Cas. Co., 135 AD2d at 374-375). Additionally, “[a]s long as there is adequate [evidence from] one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing” (Lumbermens Mut. Cas. Co., 135 AD2d at 375). Here, plaintiff submitted evidence from someone with personal knowledge concerning the specific procedures used by plaintiff to ensure that the addresses on the envelopes were accurate and concerning the “office procedures relating to the delivery of mail to the post office” (id.). In opposition to the motion, Jackson failed to raise a triable issue of fact “that [the] routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed” (Nassau Ins. Co., 46 NY2d at 830).”

 

Amended motion/Admissible Reply papers/Defects in affidavits/delay letter vs. verification requests

Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 51266(U)(App. Term 2d Dept. 2013)

“Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.”

“In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).”

“[t]here was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined.” (typographical error)

“A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims ” (A delay must ask for something)

“Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case ”

This case starts with some procedural history.  It then states that IME affidavits are not probative based upon inconsistencies and then it ends with a statement that a “delay letter” is insufficient to toll the period to pay or deny a claim.   Finally, the affidavit was insufficient to establish a business record foundation (CPLR 4518[a])

 

All you wanted to know about 4518(a) but were afraid to ask

All Borough Group Med. Supply, Inc. v Geico Ins. Co., 2013 NY Slip Op 23262 (App. Term 2d Dept. 2013)

“At the outset, we note that plaintiff was not required to lay a CPLR 4518 (a) foundation for the assignment of benefits form. An assignment of benefits is not hearsay; like a contract, it has independent legal significance and need only be authenticated to be admisible (sic)(see Kepner-Tregoe, Inc. v Leadership Software, Inc., 12 F3d 527, 540 [5th Cir 1994]; see also Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, plaintiff was attempting to use the delivery receipt and claim form to prove the transactions recorded therein, and so was required to lay a CPLR 4518 (a) foundation for those records.”

“If a record is made in the regular course of business, it is the regular course of business to make the record, and the record is made at or about the time of the event being recorded, the record can be admitted into evidence pursuant to the CPLR 4518 (a) business records hearsay exception.” [Court gives you the questions to ask to lay a 4518(a) foundation.]

“A review of the evidence adduced at trial shows that plaintiff’s witness was employed by plaintiff prior to, during, and after the time that defendant had provided the supplies to plaintiff. The witness testified he and another person who was no longer employed by plaintiff had generated all of plaintiff’s claim forms, and that his father, who was the owner of plaintiff, had generated the delivery receipts. The witness also testified, albeit inartfully, that he was familiar with plaintiff’s office routine and that plaintiff’s delivery receipts and claim forms were routinely and contemporaneously made in the course of plaintiff’s business, and that it is plaintiff’s regular business practice to make such records.”

“In addition, CPLR 4518 (a) provides that a witness’s lack of personal knowledge affects the weight of the record, not the admissibility of the record.”

So consider this a basic evidence lesson from the Appellate Term.

The doctor himself could not get his bills into evidence

 AR Med. Rehabilitation, P.C. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50510(U)(Civ. Ct. Kings Co. 2013)

“The court finds that Dr. Rozenberg’s testimony was insufficient to lay the foundation necessary to establish that plaintiff’s billing documents are business records. Dr. Rozenberg indicated that although Kevi Management Company (“Kevi”) was located in the same building, it was a separate entity that handled all of the collection and billing tasks for AR Medical Rehabilitation (71, 81-82). Dr. Rozenberg stated that Kevi employees generated the bills and that he would sign or stamp them, but the witness failed to adequately describe the procedure that Kevi employees followed when creating bills (tr 25-26, 71). The doctor testified that after receiving the signed or stamped bill, a Kevi employee (1) inserted bills in an envelope, (2) placed the envelopes in a plastic bag, (3) delivered the entire package to the post office for mailing, then (4) recorded the mailing of each bill in a notebook that was kept in the office (tr 24, 28).”

[There were numerous deviations from the above procedures].

“Based upon the inconsistencies and gaps in Dr. Rozenberg’s testimony and the plaintiff’s failure to produce a witness from the Kevi Company, the court finds that plaintiff failed to lay the proper foundation for admission of the documents in evidence under the business record exception to the hearsay rule (see CPLR 4518[a]; compare Art of Healing Medicine, P.C. v Travelers Home and Marine Ins. Co., 55 AD3d 644 [2d Dept 2008] and Viviane Etienne Medical Care, P.C., 31 Misc 3d 21 [2d 11 13 Jud Dists 2011] with Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 [2d Dept 2010]. Consequently, the court hereby rescinds its decision to admit plaintiff’s bills into evidence as business records on the day of trial.”

Problems abound for Dr. Rozenberg – and more than his criminal issues.