Key Takeaway
Analysis of peer doctor hearsay testimony in no-fault insurance cases, examining Civil Court's distinction from Appellate Term precedent in Beal-Medea v GEICO.
This article is part of our ongoing evidence coverage, with 128 published articles analyzing evidence 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.
Beal-Medea Prods., Inc. v GEICO Gen. Ins. Co., 2010 NY Slip Op 50800(U)(Civ. Ct. Kings Co. 2010)
This is the topic that just will not go away. Except for one case that I will discuss later, the Appellate Term has consistently held that a peer doctor may predicate his testimony from an Assignor’s out-of-court medical records. Although never explicitly stated, the courts have held that there is an inference that medical records containing some biographical information about the assignor are reliable. This is why the Appellate Term has rebuked every hearsay challenge that has been presented on a properly developed record.
Yet, each time the Appellate Term holds that the purported hearsay challenges lack merit, another civil court purports to find a “distinction” in order to sustain a hearsay challenge. Most of these distinctions are without a difference, and where the distinction occurs in this case is beyond me; but the Civil court here found that the peer doctor’s testimony should be stricken because it violated Wagman. The Court, without going into detail, continuously cited Progressive Med., Inc. v Allstate Ins. Co., 26 Misc 3d 138(A)(App. Term 2d Dept. 2010), for its justification in striking the testimony of the peer doctor.
In case you forgot, Progressive Med stated the following:
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
“On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.”
Even one of the most respected practitioners from the no-fault plaintiff’s bar, along with the respected no-fault blogger from the same law firm, observed the following about Progressive Med., Inc. v Allstate Ins. Co., in an April 8, 2010 New York Law Journal article entitled APPELLATE COURTS ADDRESS ISSUES OF PROCEDURE AND FOUNDATION 4/8/2010 NYLJ 3, (col. 1): “Practitioners should note, however, that the court took pains to point out the sparse record.”
As I have said numerous times, medical records containing some biographical information about the assignor will raise an inference that the said medical records are reliable. This is never to say -and I have said this before – that a Plaintiff can offer evidence to rebut this inference. Think of res ipsa loquitor. It is is a similar concept here.
But, to jump up and down, yell hearsay and actually obtain a decision like this should and probably will lead to an appeal, whose result is preordained.
Related Articles
- Understanding expert medical testimony when based on unsworn MRI reports
- How civil court decisions in no-fault insurance cases demonstrate flawed legal reasoning
- Article 10 evidentiary issues involving expert witness testimony and hearsay rules
- Civil court judge correctly rejects Wagman-based peer hearsay challenge
- New York No-Fault Insurance Law
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 2,353 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
Evidentiary Issues in New York Litigation
The rules of evidence determine what information a court or arbitrator may consider in deciding a case. In New York no-fault and personal injury practice, evidentiary issues arise constantly — from the admissibility of business records and medical reports to the foundation requirements for expert testimony and the application of hearsay exceptions. These articles examine how New York courts apply evidentiary rules in insurance and injury litigation, with practical guidance for building admissible evidence at every stage of a case.
128 published articles in Evidence
Keep Reading
More Evidence Analysis
CPLR § 2106 Amendment Eliminates Affidavit Notarization Requirement: What This Means for New York Litigation
New York's CPLR 2106 permits affirmations in place of many sworn documents. See the 2024 and 2025 changes, exceptions, and historical case notes.
Feb 18, 2026
When the trial court in a bench trial does not assess credibility
Learn when NY appellate courts can review bench trial credibility findings. Expert legal analysis of appellate standards. Call 516-750-0595 for consultation.
Nov 3, 2019
Judicial Notice of the New York E-Courts Website: When Courts May Rely on Online Records
New York courts may take judicial notice of the official E-Courts website. Alev Medical v American Transit shows how online court records can decide an appeal.
Apr 8, 2012
The spreadsheet was not in admissible form?
Total Family v Mercury: the 2010 spreadsheet-foundation dispute, Jason's original explanation, and the mixed verification, billing and discovery result.
Aug 19, 2010
An affidavit is not be admissible at trial – You knew this already
Learn why affidavits cannot be used at trial in New York courts.
Nov 8, 2009
Unsworn Letters Not Enough: Why Medical Necessity Rebuttals Must Be Sworn and Signed
Innovative MR Imaging rejected unsigned, unsworn opposition in 2015. Separate that Second Department ruling from today's CPLR 2106 affirmation rules.
Oct 6, 2015Was this article helpful?
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.
If you need legal help with a evidence matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
