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.



Business Records

JP Morgan Chase Bank v Shapiro, 2013 NY Slip Op 01357 (1st Dept. 2013)

“The underlying mortgage and note were originally held by Washington Mutual Bank, FA (WAMU). Plaintiff submitted the affidavit of an employee who identified herself as having personal knowledge of, inter alia, plaintiff’s status as successor-in-interest to WAMU and defendant Saadia Shapiro’s default. This was based upon her review of plaintiff’s books and records and its account records regarding Shapiro’s delinquent account (see CPLR 3212[b]).”

Note that affiant was related to successor entity and was not employed when record was generated.  This will cut both ways.

Best evidence and the failure to tab exhibits


Billingy v. Blagrove, 2011 N.Y. Slip Op. 03986 (2d Dept. 2011). ( I copied this from westlaw).

I am going to add this here.  Somewhere in the universe of oppositions – besides my favorite about there not being a justiciable controversy to a DJ action despite a Claimant’s submission of bills for no-fault benefits that were denied- we now have the you did not put tabs in your papers, you do not have originals, your captions are off and the new one: “it does not have the ‘feel’ of an affidavit…”  I saw this one from – well I am not going to name names…  Oh yes, do affidavits have feelings?  Ask Beaker what he thinks?

So – see below:

I think that the Courts in this State sometimes invent reasons to avoid addressing cases on their merits.  The Appellate Division, Second Department, in their “default judgment” jurisprudence has proven this point.  I do not have statistics – maybe Gottlieb in CPLR land has them – but the appellate court in Brooklyn really dislikes vacating defaults.

Well, how many of us have had a judge tell us: “If you do not put exhibit tabs on your papers, they will not be considered.”  The other one is: “If you do not number your paragraphs in your affirmations they will not be considered”.  People who know me understand my pet peeve about unnumbered affirmations, and there are plenty of you who read this who are guilty of that transgression.

But this case dealt with best evidence and untabbed affirmations, and held as follows:

“The oft-mentioned and much misunderstood best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven” (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643 [internal quotation marks omitted]). Since the plaintiff did not dispute the existence of the defendant’s affidavit, or the accuracy of the relevant portions of the reproduction, the best evidence rule should not have been applied to bar consideration of the reproduction (see Comerica Bank, N.A. v Benedict, 39 AD3d 456, 458; Thomson v Rubenstein, 31 AD3d 434, 436; Chamberlain v Amato, 259 AD2d 1048, 1049). Moreover, in light of the “strong policy favoring disposition of actions on the merits” (Sanchez v Serje, 17 AD3d 562, 563), and given the circumstances of this case, the Supreme Court improvidently exercised its discretion to the extent that it refused to consider the reproduction of the defendant’s affidavit on the ground that the defendant’s opposition papers did not utilize protruding exhibit tabs (see Lee v Marino, 36 AD3d 454, 454-455; see also CPLR 2001; cf. Ali v Buno, 25 Misc 3d 1213[A], 2009 NY Slip Op 52086[U], *3 [2009]). Accordingly, the Supreme Court should have considered the photocopy of the defendant’s affidavit submitted in opposition to the plaintiff’s motion for summary judgment on *2 the issue of liability (see CPLR 2101[e]; Campbell v Johnson, 264 AD2d 461, 461; Matter of Lamont D., 247 AD2d 615, 615-616; Matter of Samuel E., 240 AD2d 251, 252).”

Oh by the way – photocopied signatures on peer reports and IME reports…. how will this case effect that jurisprudence?

Oral application granted (untimely papers accepted) and the deeming acceptable of an affirmation of a physician in a different specialty

Payne v Buffalo Gen. Hosp., 2012 NY Slip Op 04901 (4th Dept. 2012)

[Oral application granted and untimely papers deemed accepted]

“With respect to appeal No. 1, we reject defendants’ contention that Supreme Court erred in granting plaintiff’s application and in thus considering plaintiff’s untimely expert affirmation. “While a court can in its discretion accept late papers, CPLR 2214 and [CPLR] 2004 mandate that the delinquent party offer a valid excuse for the delay . . . Additional factors relevant when essentially extending the return day by accepting late papers include, among others, the length of the delay and any prejudice” (Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1416 [internal quotation marks omitted]; see generally Foitl v G.A.F. Corp., 64 NY2d 911, 912-913). Plaintiff’s attorney offered a valid excuse for the delay (see Mallards Dairy, LLC, 71 [*2]AD3d at 1416; Associates First Capital v Crabill, 51 AD3d 1186, 1188, lv denied 11 NY3d 702; cf. Gagnon v St. Joseph’s Hosp., 90 AD3d 1605, 1607), the delay of only several days was minimal (see Associates First Capital, 51 AD3d at 1188), and “any prejudice was alleviated when defendant[s were] permitted to submit . . . reply affidavit[s] in response to plaintiff’s late submission” (Mallards Dairy, LLC, 71 AD3d at 1416).”

[Ability to use a doctor who is outside the specialty as that of the defendant physicians in medical malpractice matter]

“It is well recognized that a plaintiff’s expert need not have practiced in the same speciality as the defendants (see Diel v Bryan, 57 AD3d 1493, 1494). The record includes the redacted affirmation of plaintiff’s expert stating that the expert was a physician duly admitted to practice in New York, had been licensed and had practiced for over 20 years, had a specialty in neurology, and had practiced in emergency room settings in hospitals in Western New York. We conclude that the expert’s affirmation was sufficient to demonstrate that the expert has “the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion rendered [on the issues of negligence and proximate cause] is reliable”

Right to confrontation trumps HIPPA

Since we have a  HIPPA compliant judge this term in the Bronx Civil Court, I found a case, albeit criminal, which while not on point, shows the limits of HIPPA:

People v Jaikaran,2012 NY Slip Op 03464 (2d Dept. 2012)

“Here, the hospital records were properly certified (see CPLR 4518[a]; CPL 60.10)  [MY NOTE: DID THEY MEAN 4518(c)] and they included several statements by the complainant wherein she told the hospital staff, inter alia, that she was not sexually active and that she had not been the victim of sexual abuse. These portions of the hospital records were admissible under the business records exception to the hearsay rule (see People v Ortega, 15 NY3d 610, 616-617). While the People argue that the hospital records were properly precluded on the ground that they were privileged (see CPLR 4504; CPL 60.10), a defendant’s Sixth Amendment right of confrontation can overcome a statutory privilege (see Davis v Alaska, 415 US 308, 319-320). The right of confrontation furnishes a criminal defendant with (1) the right physically to face those who testify against him or her, and (2) the right to conduct cross-examination (see Pennsylvania v Ritchie, 480 US 39, 51). In this case, the complainant’s statutory physician-patient privilege (see Dillenbeck v Hess, 73 NY2d 278, 283) is in direct conflict with the defendant’s constitutional right of confrontation. Therefore, under the circumstances, the policy underlying the statutory privilege “must yield to the defendant’s constitutional right of confrontation”

Again, HIPPA and privileges have their limits.  I think this case is right on point for that proposition.  As to its application to no-fault, I leave the application of this case to others out there.

4518(a) deals with certification?

Hazzard v Burrowes, 2012 NY Slip Op 03409 (2d 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”

4518(a) v. 4518 (c) ?

Judicial notice applies to e-court website

Alev Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50568(U)(App. Term 2d Dept. 2012)

“A review of the information on the New York State Unified Court System E-Courts public Web site, of which we may take judicial notice (see Matter of L & Q Realty Corp. v Assessor, 71 AD3d 1025 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), reveals that, although no judgment has been entered, the complaint was dismissed subsequent to the entry of the order appealed from. In light of that dismissal, this appeal must be dismissed as academic”

Civil Court overturns Appellate Term precedent

Park Slope Med. & Surgical Supply, Inc. v Metlife Auto & Home, 2012 NY Slip Op 22064 (Civ. Ct. Queens Co. 2012)

“In any event, where the denial of a no-fault claim is based on a peer reviewer’s finding of a lack of medical necessity, upon an ensuing trial on that issue, the expert whose opinion is most critical is the author of peer review report. In fact, even in its decisions ruling that an expert who is not the original peer reviewer should be permitted to testify, the Appellate Term has said that such expert’s opinion should be “limited to the basis for the denial as set forth in the original peer review report.” (See Park Slope Med. & Surg. Supply v Progressive, ___ Misc 3d ____ , 2012 NY Slip Op 50349 [U][2d, 11th & 13th Jud Dists 2012], supra; Radiology Today, P.C., 32 Misc 3d 144[A][2d, 11th & 13th Jud Dists 2011], supra; Dilon, 18 Misc 3d 128[A], [2d, 11th & 13th Jud Dists 2007] supra.) However, if the peer review report is not in evidence, the parameters of such report, including the reasons given for the denial, are not a matter of record, and for purposes of trial, are unknown.”

The peer report is a medical based document that makes conclusions based upon assumptions that are presented in the Assignor’s medical history.  The peer report is itself redundant and should not be admitted into evidence since it constitutes improper bolstering of the underlying expert testimony.

Testimony that runs consistent with the peer report should be admissible.

10-1 odds this gets reversed.  The backlog of cases at the App Term is about 2-3 years, so we will not get an answer until the middle of this decade.  Heaven knows how much more appellate work the defense bar will egage in until this issue is “resolved” (again).

Business record rule applies to hospitals also

Westchester Med. Ctr. v Government Empls. Ins. Co., 2012 NY Slip Op 50398(U)(App. Term 2d Dept. 2012)

“In the case at bar, plaintiff’s submission of a third-party affidavit failed to demonstrate that the NF-5 hospital facility form or the UB04, which was incorporated by reference into the NF-5 and which listed the services provided by the hospital, was plaintiff’s business record and therefore admissible as proof that, for example, those services had been rendered (see Matter of Carothers, 79 AD3d 864; New York Hosp. Med. Ctr. of Queens, 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U]).”

What is amazing here is that a hospital that gets its case 325(d)’d from Supreme Court now has to make an additional threshold showing in order for its motion for summary judgment to be granted.

A signature placed at the direction of the signor

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 2012 NY Slip Op 50394(U)(App. Term 2d Dept. 2012)

Assuming one breaches the threshold issue of whether Plaintiff provided sufficient evidence to demonstrate that the signature was anything but holographic, the Court held that the peer report affidavit sufficiently made the proper showing that the signature was electronic and placed at the direction of the signor.

“While plaintiff also asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was placed on the report by the doctor who had performed the peer review or at his direction”