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 ), 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 ). 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 ), 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 ; see Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 ). 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 , cert denied 547 US 1159 ; Matter of State of New York v Motzer, 79 AD3d 1687, 1688 ), 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 ; Matter of State of New York v J.A., 21 Misc 3d 806, 816-817 2008] ; but see State of New York v Dove, 18 Misc 3d 254, 256-258 ). 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 , lv denied 16 NY3d 719 ) [“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 ).

Moreover, the hearsay in issue represented only a small fraction of the evidence considered by the experts and “ not constitute the sole or principal basis for the experts’ opinion” (Matter of State of New York v Fox, 79 AD3d 1782, 1783 ). 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 ” (Matter of State of New York v Shawn X., 69 AD3d 165, 172 , lv denied 14 NY3d 702 ; 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 of the basis of the expert opinion and not for the truth of the matters related” (Matter of State of New York v Wilkes, 77 AD3d at 1453 ; see People v Wlasiuk, 32 AD3d 674, 680 , lv dismissed 7 NY3d 871 ). 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 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). The concern is that the expert should not be made a “conduit for hearsay” (People v Goldstein, 6 NY3d at 126 ). 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 ), 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 , lv denied 15 NY3d 713 ).

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 ).”

Related Articles

• Understanding Article 10 Evidentiary Issues: Expert Witness Testimony and Hearsay Rules in New York Courts
• The destruction of peer hearsay: It is not hearsay – and much more
• New York Civil Court Evidence Rules: CPLR 3101(d) and Peer Review Reports
• Civil Court Decisions in No-Fault Insurance: When Legal Reasoning Goes Wrong
• New York No-Fault Insurance Law

Legal Update (February 2026): The evidentiary standards and peer hearsay admissibility discussed in this post from 2011 may have been subject to subsequent appellate decisions and regulatory amendments. Given that this area involves the intersection of Mental Hygiene Law Article 10 proceedings and no-fault insurance threshold determinations, practitioners should verify current case law developments and any updates to Evidence Rules regarding expert testimony reliance on hearsay materials.