Key Takeaway
4th Department rules on evidentiary issues including unsworn chiropractic reports, expert disclosure limitations, and serious injury standards in personal injury case.
This article is part of our ongoing evidence coverage, with 126 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.
Siemucha v Garrison, 2013 NY Slip Op 07608 (4th Dept. 2013)
Point #1: Unsworn to chiropractic report (affidavit?) was proper because it was unobjected to (nothing new) and was based upon otherwise admissible hearsay (something new?)
“Defendants failed to preserve for our review their contention that the affirmed report of the chiropractor was not in admissible form (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 n 3; cf.Hartley v White, 63 AD3d 1689, 1690;Shinn v Catanzaro, 1 AD3d 195, 197-198). In any event, a plaintiff “may rely on unsworn reports and uncertified medical records if they were submitted by defendants … or were referenced in the reports of physicians who examined plaintiff on their behalf, and submitted the reports of their experts” (Feggins v Fagard, 52 AD3d 1221, 1223; see Brown v Achy, 9 AD3d 30, 32). Here, defendants’ expert reviewed and referenced numerous [*2]medical records of plaintiff in his report, including the chiropractic records.”
Point 2: “objective proof of spasm in his cervical spine” is sufficient to demonstrate a serious injury
Point 3: A narrow 3101(d) can preclude otherwise relevent evidence.
“Defendants further contend that the evidence of plaintiff’s drug use was relevant to the claim of loss of enjoyment of life and plaintiff’s heart problems, but defendants’ expert disclosure did not include those topics, and the court therefore properly precluded defendants from presenting such evidence at trial (see generally Lidge v Niagara Falls Mem. Med. Ctr. , 17 AD3d 1033, 1035). Likewise, the court did not abuse its discretion in precluding defendants’ expert from testifying regarding his experience treating patients with pending litigation and a study concerning that subject matter inasmuch as those matters were not included in defendants’ expert disclosure ”
Point 4: Police Reports
“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule, such as an admission (see Huff v Rodriguez, 45 AD3d 1430, 1432; Stevens v Kirby, 86 AD2d 391, 395). Here, however, inasmuch as “the source of the information was never identified,” the statement was not admissible as an admission (Huff, 45 AD3d at 1432)”
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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.
126 published articles in Evidence
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Frequently Asked Questions
What types of evidence are important in no-fault and personal injury cases?
Key types of evidence include medical records and bills, police accident reports, diagnostic imaging (MRI, X-ray, CT scans), expert medical opinions, business records from insurance companies and providers, witness statements, photographs of injuries and the accident scene, and employment records for lost wage claims. The rules of evidence under New York CPLR and the Evidence Rules govern what is admissible in court proceedings.
What is the business records exception to hearsay in New York?
Under CPLR 4518(a), a business record is admissible if it was made in the regular course of business, it was the regular course of business to make such a record, and the record was made at or near the time of the event recorded. This exception is crucial in no-fault litigation because insurers' denial letters, claim logs, and peer review reports are often offered as business records. The foundation for the business record must be established through testimony or a certification.
What role does diagnostic imaging play as evidence in injury cases?
Diagnostic imaging — MRIs, CT scans, X-rays, and EMG/NCV studies — provides objective evidence of injuries such as herniated discs, fractures, ligament tears, and nerve damage. Courts and arbitrators give significant weight to imaging evidence because it is less subjective than physical examination findings. In serious injury threshold cases under §5102(d), imaging evidence corroborating clinical findings strengthens the plaintiff's case considerably.
How do New York courts handle surveillance evidence in personal injury cases?
Insurance companies frequently hire investigators to conduct video surveillance of plaintiffs to challenge injury claims. Under CPLR 3101(i), a party must disclose surveillance materials prior to trial, including films, photographs, and videotapes. Surveillance evidence can be powerful for impeachment if it contradicts the plaintiff's testimony about limitations. However, courts may preclude surveillance that was not properly disclosed or that is misleadingly edited.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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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