Objected to inadmissible proof spells doom

Medical Assoc., P.C. v Interboro Ins. Co., 2012 NY Slip Op 50392(U)(App. Term 2d Dept. 2012).

I wrote the reply that got this case dismissed on appeal.  I am not sure if I wrote the appeal.  The Court said the following:

“Triable issue of fact not raised because:

“In opposition, plaintiff proffered an unsworn medical report (see CPLR 2106; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

And a hearsay bonus here:

“The purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff’s assignor was injured as documented in her medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary (Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant was not required to demonstrate that the records fell within an exception to the rule against hearsay (id.). Thus, the Civil Court should have granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.”

Business record challenge to police report

Hernandez v Tepan, 2012 NY Slip Op 01211 (2d Dept. 2012)

“As the defendant correctly contends, the police accident report submitted by the plaintiff in support of the plaintiff’s motion for summary judgment on the issue of liability constituted inadmissible hearsay, since the report was not certified as a business record (see CPLR 4518[a]; Johnson v Lutz, 253 NY 124, 128; Bailey v Reid, 82 AD3d 809, 810; see also Noakes v Rosa, 54 AD3d 317, 318), and there is no indication that some other hearsay exception applied to the statements contained in the report”

This case is a hard read.  It says an uncertified police report is hearsay, yet cites to 4518(a) and not 4518(c).  The cases that are cited deal with, in essence, Hochauser  issues.

Another really intelligent appeal

When will certain Plaintiffs and their law firms realize that it is okay to occasionally lose in Civil Court.  Look at the the mess that  Plaintiff has now created for itself.  By the way, look at the bolded section of this opinion.  Why did you do this to yourself Mr. Five Boro?

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2011 NY Slip Op 51528(U)(App. Term 2d Dept. 2011)

“Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant’s motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.”

“[d]efendant was not relying on [the denials] for th[e] [hearsay] purpose. It is plaintiff’s burden, not defendant’s, to prove the elements of plaintiff’s cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (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 [*2]Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility”

An psychologist can base his testimony off his own unsworn report – are you really surprised?

Psychology YM, P.C. v Geico Gen. Ins. Co., 2011 NY Slip Op 51316(U)(App. Term 2d Dept. 2011)

Why this objection was even considered is crazy.  It does not pass the smell test, let alone the laugh test.  Yet, I cannot say I am the least bit surprised.  Luckily, the order was reversed.  Unfortunately, a new trial was ordered.  The complaint should have been dismissed with prejudice.

“At a nonjury trial, the Civil Court granted plaintiff’s motion to preclude the testimony of defendant’s witness, the psychologist who had prepared the peer review report upon which defendant’s claim denial was predicated, because his peer review report was not in admissible form. The Civil Court thereupon awarded judgment in favor of plaintiff in the principal sum of $1,078.48. In view of the fact that defendant sought to call as a witness its psychologist, who was prepared to testify about the factual basis and medical rationale for his opinion, as set forth in his peer review report, that there was a lack of medical necessity for the services rendered, and since he was subject to cross-examination, it was error for the Civil Court to have precluded him from testifying”

Business records (CPLR 4518[a]) back to the Appellate Division

Viviane Etienne Medical Care, P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 77673(U) (Motion No: 2011-04221)(2d Dept. 2011)

Lower decision citation: Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 31 Misc.3d 21 (App. Term 2d, 11th & 13th Jud. Dis. 2011).

This was the case, if you recall, where the Appellate Term, Second Department for the first time construed Carothers v. Geico, 79 AD3d 864 [2d Dept 2010]).  I have this gut feeling the Appellate Division is going to reverse the Appellate Term this time.

Present sense impression? Refreshing recollection? Inconsistent Statement?

Seaberg v North Shore Lincoln- Mercury, Inc., 2011 NY Slip Op 05688 (2d Dept, 2011).

An interesting evidentiary discussion, in a civil matter, with plenty of criminal law citations involving routinely encountered issues.

(1) “plaintiff sought to admit into evidence a tape of Pina’s 911 call under the present sense impression or excited utterance exceptions to the hearsay rule. In opposition, the defendant quoted from Pina’s deposition testimony, in which he had stated, “somebody said to call [911]. A lady fell in the parking lot.” Defense counsel argued that this testimony demonstrated that Pina had not seen the accident and, accordingly, any statement he may have made that was recorded on the 911 tape was not within one of the proffered exceptions to the hearsay rule to the extent that it may have described how the accident occurred. The Supreme Court agreed with defense counsel, and denied the plaintiff’s request to admit the tape of Pina’s 911 call under the present sense impression or excited utterance exceptions to the hearsay rule.”

(2) “Pina did recall, however, waiting at the scene for approximatley 15 minutes until an ambulance arrived. He recalled that, during that time,

(3) “After Pina gave this testimony, the plaintiff’s counsel requested a bench conference, after which counsel stated, on the record, that Pina had just testified that he had seen no ice on the ground immediately after the accident, but in his prior deposition testimony, he admitted telling the 911 operator that he had seen “ice on the ground that caused [plaintiff] to slip and fall.”

(4) “The defense asserted that the plaintiff’s counsel was mischaracterizing Pina’s deposition testimony. Defense counsel then quoted from a portion thereof, in which Pina testified both that he did not recall seeing ice on the ground and that the content of the 911 tape did not refresh his recollection about the incident.

(5) “The jury returned a verdict in favor of the defendant on the issue of liability. Thereafter, the Supreme Court entered a judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals and we reverse.”

(6) “On appeal, the plaintiff contends that the judgment must be reversed and that a new trial is warranted because Pina’s statement on the 911 tape falls within the present sense impression exception to the hearsay rule or, alternatively, that she should have been allowed to refresh Pina’s recollection with the 911 tape and admit the 911 tape into evidence as a prior inconsistent statement. In opposition, the defendant contends that all of the plaintiff’s arguments are without merit because Pina did not witness the accident.”

(7) “Here, Pina did not witness the accident, but arrived at the scene after the fall. Thus, contrary to the plaintiff’s contention, any statements Pina may have made to the 911 operator about how the accident occurred were not present sense impressions of that issue, as he did not perceive the accident at all”

But (8) “We agree with the plaintiff, however, that the Supreme Court should have allowed her to refresh Pina’s recollection with the 911 tape. At trial, Pina explained that he had no independent recollection of the incident. Such testimony was sufficient to allow the plaintiff to play the 911 tape outside the presence of the jury and allow Pina to refresh his recollection about what he had told the 911 operator”

(9) “The plaintiff also contends that the 911 tape should have been admitted as a prior inconsistent statement since, at trial, Pina testified that he did not observe any ice during the 15 minutes he stood near the plaintiff waiting for the ambulance to arrive, which was inconsistent with statements he made to the 911 operator. We agree with the plaintiff. Here, the plaintiff laid the proper foundation for the introduction of the 911 tape as a prior inconsistent statement by questioning Pina as to the contents of the 911 tape so that he could explain any inconsistency (see Prince, Richardson on Evidence § 6-411[a] [Farrell 11th ed]; People v Wise, 46 NY2d 321, 326; People v Longo, 151 AD2d 786; cf. People v Wilkins, 221 AD2d 392). Upon the plaintiff’s laying of such foundation, the Supreme Court should have admitted the 911 tape into evidence as a prior inconsistent statement by Pina for the limited purpose of allowing the plaintiff to impeach his credibility”

Reversed on the law.

Authoritative.

I mean to pose this previously, but it slipped my mind.  Check this out:

Wild v. Catholic Health System, 2011 N.Y. Slip Op. 05337 (4th Dept. 2011)

“We reject the contention of Dr. Martin and her partnership, defendant Buffalo Emergency Associates, LLP (collectively, defendants), that Supreme Court exhibited bias in favor of plaintiffs or abused its “broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” (Carlson v Porter [appeal No. 2], 53 AD3d 1129, 1132, lv denied 11 NY3d 708 [internal quotation marks omitted]). We agree with defendants, however, that the court erred in permitting plaintiffs to attempt to impeach defendants’ expert during plaintiffs’ cross-examination of that expert by playing an instructional DVD that he had helped to edit and finance, inasmuch as the expert testified that he did not accept the DVD as authoritative (see Winiarski v Harris [appeal No. 2], 78 AD3d 1556, 1557-1558). Under the circumstances of this case, however, we conclude that the error does not warrant reversal.”

Another Article 10 case wittles away peer hearsay

Matter of State of New York v Mark S., 2011 NY Slip Op 04792 (3d Dept. 2011)

An astute commentator could probably write an article correlating the plaintiff’s bar’s purported financial detriment, viz. excluding defense doctors based upon impermissible “peer hearsay”, with the advent of Article 10 of the Mental Health Law.   I for one always found peer hearsay challenges specious, and convinced a civil court judge in a pre Article 10  published decision as such.  But, these Article 10 cases have pretty much done what the Appellate Division in the Matter of State of New York v Mark S. has said it did not want to do: “the expert should not be made a “conduit for hearsay”

I for one do not have a problem with the expert relying on hearsay, if only because the cross-examination pretty much focuses on the lack of personal knowledge of the expert with the hearsay records, and it allows an opposing expert to find holes in the hearsay records relied upon.

Also, do  not take the cavalier viewpoint that these Article 10 cases do not apply to no-fault or 5102(d) threshold practice.  We have already seen the Appellate Term, Second Department, rely on an Article 10 case in finding that peer hearsay is admissible.  There will be more cites to these types of cases in the future.

Here is the pertinent portion of the case:

“Initially, while civil rules of evidence apply to Mental Hygiene Law article 10 hearings (see Mental Hygiene Law § 10.07 [b]), the governing statute expressly contemplates that psychiatric examiners will have access to and consider all of a “respondent’s relevant medical, clinical, criminal or other records and reports” (Mental Hygiene Law § 10.08 [b]). While generally opinion evidence must be based on facts in the record or personally known to the witness (see Bednarz v Inn On Bridges St., Inc., 68 AD3d 1411, 1412 [2009]), under the professional reliability exception to the hearsay rule, an expert may provide an opinion based on otherwise inadmissible hearsay, “provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; see Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]). The documentary evidence at issue — presentence reports, SORA records and parole revocation records — was properly relied upon by Lord in forming his expert opinion because, as Lord testified without contradiction (see People v Goldstein, 6 NY3d 119, 125 [2005], cert denied 547 US 1159 [2006]; Matter of State of New York v Motzer, 79 AD3d 1687, 1688 [2010]), they are of the type commonly relied upon in this setting (see Matter of State of New York v Wilkes, 77 AD3d 1451, 1452-1453 [2010] [parole records]; Matter of State of New York v J.A., 21 Misc 3d 806, 816-817 [Sup Ct, Bronx County [*4]2008] [presentence report]; but see State of New York v Dove, 18 Misc 3d 254, 256-258 [Sup Ct, Bronx County 2007]). In fact, such records have been specifically deemed reliable by Mental Hygiene Law § 10.08 (see Matter of State of New York v Pierce, 79 AD3d 1779, 1780 [2010], lv denied 16 NY3d 719 [2011]) [“parole board documents, presentence reports, accusatory instruments, certificates of conviction, police reports and respondent’s criminal records”]; see also People v Mingo, 12 NY3d 563, 572-574 [2009] [case summaries, presentence reports and victim statements are reliable hearsay admissible in SORA proceedings][FN2]).

Moreover, the hearsay in issue represented only a small fraction of the evidence considered by the experts and “[did] not constitute the sole or principal basis for the experts’ opinion” (Matter of State of New York v Fox, 79 AD3d 1782, 1783 [2010]). Lord’s consideration of evidence of the facts underlying respondent’s conduct beyond the crimes of conviction, upon his guilty pleas, was not improper, given that the evidence of uncharged crimes (or crimes greater than the ultimate conviction) was “relevant and not unduly prejudicial,” and there is “no provision in Mental Hygiene Law article 10 that limits the proof to acts that resulted in criminal convictions when considering [respondent’s mental abnormality]” (Matter of State of New York v Shawn X., 69 AD3d 165, 172 [2009], lv denied 14 NY3d 702 [2010]; see Matter of State of New York v Fox, 79 AD3d at 1784).

We now turn to whether the documentary evidence itself was properly received in evidence to assist Supreme Court as factfinder in evaluating the experts’ opinions. Initially, expert testimony based upon hearsay is ordinarily admissible under the professional reliability rule “for the limited purpose of informing the [factfinder] of the basis of the expert[s’] opinion[s] and not for the truth of the matters related” (Matter of State of New York v Wilkes, 77 AD3d at 1453 [internal quotation marks and citation omitted]; see People v Wlasiuk, 32 AD3d 674, 680 [2006], lv dismissed 7 NY3d 871 [2006]). The court properly admitted this testimony for the limited purpose of aiding its evaluation of the experts’ psychiatric opinions. While the court — in its decision finding that respondent suffers from a mental abnormality — concluded that there was relevant and adequate evidence in the record demonstrating that there was a nonconsensual element to respondent’s rapes, recounting facts contained in the victims’ supporting depositions, the court reached this conclusion for the narrow permissible purpose of concluding that these depositions were “properly considered in the formulation of professional opinions.” Thus, contrary to respondent’s claim, we do not find that Supreme Court erroneously relied on the hearsay statements contained in the exhibits for the truth of the matters asserted therein.

There is, of course, a recognized “distinction between the admissibility of an expert’s opinion and the admissibility of the information underlying it” (People v Goldstein, 6 NY3d at 126). There is no clear rule on when “a proponent of an expert’s opinion [may] put before the fact finder all of the information, not otherwise admissible, on which the opinion is based” (id.). Thus, “whether evidence may become admissible solely because of its use as a basis for expert testimony remains an open question in New York” (Hinlicky v Dreyfuss, 6 NY3d at 648; see Matter of State of New York v Fox, 79 AD3d at 1783)[FN3]. The concern is that the expert should [*5]not be made a “conduit for hearsay” (People v Goldstein, 6 NY3d at 126 [internal quotation marks and citation omitted]). A related concern in criminal cases is the right of a defendant under the Confrontation Clause (US Const Sixth Amend) to cross-examine declarants regarding their hearsay statements (id. at 127; see Crawford v Washington, 541 US 36 [2004]), a right not applicable in these Mental Hygiene Law article 10 civil proceedings (see Matter of State of New York v Wilkes, 77 AD3d at 1451-1452; see also Mental Hygiene Law § 10.01; Matter of State of New York v Campany, 77 AD3d 92, 95-98 [2010], lv denied 15 NY3d 713 [2010]).

With due regard to the foregoing concerns, we are not persuaded that Supreme Court, acting as factfinder at this bench trial, abused its discretion or erred as a matter of law in admitting these customarily relied-upon documentary records containing hearsay into evidence for its evaluation of the weight and credibility of the expert testimony (see Matter of State of New York v Pierce, 79 AD3d at 1781; Matter of State of New York v Craig T., 77 AD3d 1062, 1064 [2010]).”

A very impressive win.

NYU-Hospital for Joint Diseases v Esurance Ins. Co., 2011 NY Slip Op 04436 (2d Dept. 2011)

“Esurance issued a denial of claim, which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied the claim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.

The hospital then commenced this action seeking payment of its bill, and moved for summary judgment on the complaint arguing, among other things, that the denial of claim was untimely, fatally defective for the above-mentioned mistakes, and that Esurance’s defense that Cancian was intoxicated was unsupported by the evidence.

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]) and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated'” (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996, quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the “denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denial of claim….

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its “standard office practices or procedures designed to ensure that items were properly addressed and mailed” (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity

Further, Esurance raised a triable issue of fact as to whether Cancian was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103[b][2]). Contrary to the hospital’s contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518[a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).”

Very good work on the part of defense counsel.  Defense counsel tore apart the ridiculous “how was I supposed to know what was denied, I only spend my life doing medical collections work.”  He also tore apart “the police report was uncertified” even though the whole world knows it says what it says.  Lastly, defense counsel beat back the untimely denial argument, but I am not sure how or what the facts were regarding this argument.  I have an email into defense counsel to find out what actually happened.

Dr. Grinsberg is incompetent to testify as a matter of law

If you are going to spend money on a rebuttal, make sure (s)he has the proper credentials.  As many people have told me in life, you get what you pay for.  This case, a colossal disaster, proves that point.  In fact, I am hoping Plaintiff appeals this…

Five Boro Psychological Servs. v GEICO Ins. Co., 2011 NY Slip Op 50882(U)(Civ. Ct. Kings Co. 2011)

“Plaintiff then called Vladimir Grinsberg (“Grinsberg”) as a rebuttal witness. Grinsberg was a clinical psychologist in the Ukraine where he worked for six years in a psycho – neurological clinic. He claims that he administered the five tests at issue while working in the Ukraine.

Upon arriving in America, he obtained a masters in social work from Adelphi University; he is not a clinical social worker, which requires a doctorate. Ten years ago, Grinsberg worked as a social worker with the Jewish Board of Family and Children’s Services ( “Jewish Board”) doing family psychotherapy and teaching families. While working at the Jewish Board, Grinsberg administered and implemented treatment plans for private patients. He treated patients from the beginning to the end, which included reviewing tests, writing reports and interpreting the results of the test. He got reimbursed by insurance companies as a private practitioner”

There is no talismanic rule defining whether a witness is an expert or not, as “various combinations of education , training, observation or experience” may suffice, although none of the aforementioned criteria, standing alone, are determinative. Mtr. Of R..M. Children, 165 Misc 2d 441 444 ( Family Ct., Kings Co. 1995). See, Steinbach, supra, 2 AD3d at 710. Thus, the fact that a proffered witnesses does not possess an advanced degree from a university that is nationally accredited does not disqualify him when he possesses a doctoral dissertation on the subject at issue (occultism) and has “more than ordinary knowledge of nontraditional groups and the occult. “ Echols v. State., 326 Ark. 917, 936 S.W. 2d 509 (Sup Ct. Ark. 1996). Similarly, the lack of a medical licenses does not, in and of itself, disqualify a witness from testifying as an expert on a medical question, Steinbach supra (podiatrist, while only licensed to treat below the ankles, established that he had professional experience in diagnosing and treating burns both above and below ankle and hence could offer expert testimony as to the respondent podiatrist’s alleged malpractice in treating the plaintiff’s burn injury on the calf). A witness need not possess a special license within a general licensed area in order to testify Smith v. City of NY, 238 AD2d 500 (2d Dept. 1997)(plaintiff’s doctor, while not a psychiatrist, had experience in the area of hysteria conversion and thus could testify about the subject; fact that he was not a psychiatrist went to the weight, but not admissibility of his testimony). Similarly the fact that a doctor obtained a degree in a foreign country as opposed to the U.S. does not constitute an automatic disqualifier. Meiselman v. Crown Heights Hospital, 285 NY 389 (1941).

Based upon the above, the court finds that Grinsberg does not possess the combination of long observation, real experience or sufficient education or training to be qualified as an expert on psychological testing. While Grinsberg testified that he administered the five tests at issue while working as a clinical psychologist in the Ukraine, he did not elaborate upon his experience with these psychological tests or at what frequency he utilized the tests. Although Grinsberg did not testify how long he has been in the United States, it is clear that he has not worked as a psychologist since coming to the United State which, according to his testimony, is at least 10 years . He did not indicate that his studies to earn a masters in social work gave him sufficient experience or familiarity with the psychological tests at issue. During these ten years, he has neither administered these tests nor conducted the diagnostic interviews which Dr. Porter testified are essential in order to ascertain the mental status of a given patient.

Off greater import, since commencing his work with All – Boro some six years ago, Grinsberg has not even worked in the capacity of a social worker but rather administered the day – day administrative aspects of the All – Boro. Furthermore, he blithely dismissed any differences between a psychologist or social worker in New York State although he admitted that he is not [*5]aware of what is required for to be a licensed psychologist in this state.

In fact, there are substantial differences in the licensure requirements and practice of a psychologist as compared to a social worker in this State. Compare Education Law §7601-a (definition of scope of practice of psychology) with Education Law §7701(1) (definition of scope of practice of licensed master social work) and Education Law §7701(2) (definition of scope of licensed clinical social work). See generally, People of State of NY v, RR, 12 Misc 3d 161 (Sup. Ct. NY Co. 2005).

Of even greater significance to the instant matter is the difference in scope of practice between a licensed master social worker and a licensed clinical social worker. Prior to 2002, New York State only protected the use of the titles of psychologist and certified social worker, which meant that anyone could legally practice psychology or social work so long as they did not hold themselves out as social workers or psychologists or describe their services as being psychological in nature. People of State of NY supra, 12 Misc 3d at 168. In 2002, the Legislature enacted news laws licensing the practice of psychology and social work and, in particular distinguished between licensed master social workers and clinical social workers. (Laws, 2002, Ch. 420, §1, eff. 9/1/04).

The social work statute contains “two tiers of social work so that the scope of practice of a licensed master social is included within the larger scope of practice of licensed clinical social work. People of State of NY, supra, 12 Misc 3d at 171. See Education law 7701 (2)(1). “Whereas licensed clinical social workers are authorized to make and render diagnoses and the prognoses which flow from and are intimately related to them, administer and interpret tests and measures of psycho social functioning ( so called psycho diagnostic testing…), develop and implement assessment-based treatment plans and provide all forms of psychotherapy; licensed master social workers are only permitted to perform psycho social assessments and evaluations, and may not make or render diagnoses or prognoses , and may administer but not interpret tests and measures of psycho social functioning.” See Education Law §§7701 1(a) and 2(a). 12 Misc 3d at 172-74. A licensed master social worker may render the clinical functions and perform the clinical functions when then do so under the supervision of a licensed clinical social worker. Education Law §7701(d); 8 NYCRR 74.6 n 25.

It is clear that Grinsberg only possesses a master social worker license and hence is not qualified in this state to either make or render diagnoses or prognosis or interpret tests and measures of psycho social functioning. Hence, he does not possess the licensure or expertise which would qualify him to testify as an expert as to the merit or medical necessity of the five psychological tests at issue in general or how these tests pertained to the assignor. Furthermore, Grinsberg presented no testimony that he actually worked under the supervision of a licensed clinical social worker. In fact, it appears that his social worker license was irrelevant to his main job duty at Five – Boro – to supervise clinical paper work and process the claims.”