Key Takeaway
Family court case examining CPLR 4518(a) business records rule for medical documents - distinguishing admissible physician office records from inadmissible expert opinions.
This article is part of our ongoing business records coverage, with 53 published articles analyzing business records issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (2d Dept. 2010)
“Contrary to the Family Court’s general statement of the applicable law, “ physician’s office records, supported by the statutory foundations set forth in CPLR 4518(a), are admissible in evidence as business records. However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor’s opinion or expert proof” (Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797 ; see Batts v Rutrick, 298 AD2d 417; Napolitano v Branks, 141 AD2d 705, 705-706). Moreover, a physician’s office records “may be received as evidence despite the fact that a physician is available to testify as to the substance and contents of the records” (Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New York City Tr. Auth., 174 AD2d 268). Here, upon the father’s appeal of the Family Court’s order, this Court does not have the benefit of the actual medical documents in dispute since the documents are not part of the original papers before this Court. Thus, from the record, it is unclear whether the subject documents were the type which this Court views as admissible. Accordingly, we remit the matter to the Family Court, Nassau County, for a review by the Support Magistrate of the subject medical documents in light of and pursuant to the aforementioned standard as to admissibility.”
This case tells us a few things about business records and medical opinions. First, day to records, i.e., soap notes, treatment logs, and other day to day documentationare admissible as business records. As we also learned in Faust v. McPherson, 4 Misc.3d 89 (App. Term 2d Dept. 2004), an employee of the physician or the medical facility can lay this foundation. Second, medical reports are admissible as business records except for the portion that contains “the doctor’s opinion or expert proof”.
Keep this in the back of your head when you are a plaintiff in an IME cut-off case and you want to have an expert opine on the medical records subsequent to the IME cut off. As a defendant, keep your eyes open for when you see certain violations of the above-stated rule.
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Legal Update (February 2026): Since 2010, there have been amendments to CPLR 4518(a) regarding business records admissibility, and New York courts have issued additional decisions refining the distinction between admissible physician office records and inadmissible medical opinion reports. Practitioners should verify current CPLR provisions and recent appellate precedents when seeking admission of medical documentation in family court proceedings.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,600 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Business Records & Documentary Evidence in New York
The business records exception to the hearsay rule is one of the most important evidentiary foundations in New York litigation. Establishing that a document qualifies as a business record under CPLR 4518 requires showing it was made in the regular course of business, at or near the time of the event, and that it was the regular practice to create such records. In no-fault and personal injury cases, disputes over business records arise constantly — from claim files and medical records to billing documents and mailing logs.
53 published articles in Business records
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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