Another unsuccessful 4518(a) challenge

Last reviewed: September 2026.

New York’s courts continue to refine the boundaries of the business records exception under CPLR 4518(a), particularly in no-fault insurance disputes. The case Sin Med., P.C. v Travelers Ins. Co. demonstrates how insurance companies can successfully defend claims by proving proper notice was given, even without satisfying traditional business records requirements.

The decision distinguishes a letter’s nonhearsay purpose from the separate proof that it was mailed. This distinction has significant implications for no-fault practitioners, as it means certain procedural documents like examination under oath (EUO) scheduling letters and independent medical examination notices may not need to meet the stringent CPLR 4518(a) requirements that have traditionally governed business record admissibility.

The ruling also highlights how sworn stenographic transcripts can effectively establish a patient’s failure to appear for required examinations, providing insurers with a clear path to deny coverage based on non-compliance with policy requirements.

Jason Tenenbaum’s Analysis:

Sin Med., P.C. v Travelers Ins. Co., 2016 NY Slip Op 51246(U) (App. Term 2d Dept. 2016)

(1) Contrary to the Civil Court’s conclusion, defendant’s failure to establish that the EUO scheduling letters constituted evidence pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518 is of no consequence. Defendant did not offer the EUO scheduling letters to establish the “truth” of any matters asserted therein, but rather to show that the letters had been sent. As the letters were not offered for a hearsay purpose, they did not need to qualify as business records pursuant to CPLR 4518

(2) Furthermore, defendant established, based upon sworn stenographic transcripts, that plaintiff’s assignor had failed to appear for the duly scheduled EUOs

Jason’s original observation:

The 4518 argument lost luster when the Court held that policy declaration sheets did not have to be in evidence to be considered along with denial of claim forms. By analogy, EUO letters and IME letters were next to be considered under the “it is not a 4518 rule” doctrine.

Legal Significance

The Sin Medical decision applies the distinction between truth-of-content evidence and a document offered for another purpose. By distinguishing between documents offered for their truth versus documents offered merely to show they existed or were sent, the court applied basic hearsay principles that carry profound practical implications. This distinction traces back to foundational evidence law: hearsay is an out-of-court statement offered to prove the truth of the matter asserted. When a document is introduced solely to demonstrate that it was mailed or sent, not to prove the accuracy of its contents, it falls outside the hearsay definition entirely.

The court’s parallel finding regarding sworn stenographic transcripts provides insurers with a powerful tool for establishing EUO non-appearance. The court accepted the sworn transcripts offered in this case. A transcript should still be matched to the appointment at issue and examined for what the reporter actually recorded; the opinion does not make it immune from challenge.

This ruling also illustrates the evolution of no-fault procedural law. The point is the purpose for which an exhibit is offered. Sin Medical is not authority for a historical claim that every motion exhibit previously required a business-record foundation.

Practical Implications

For insurance companies, this decision provides clear guidance on how to structure summary judgment motions based on EUO or IME non-appearance. Rather than expending resources on establishing business records foundations for scheduling letters, insurers can focus on demonstrating that the letters were properly mailed to the correct address. The motion still needs competent proof of the acts required for the defense.

Healthcare providers challenging EUO or IME no-show defenses must adjust their litigation strategy accordingly. A business-record objection to a letter offered only for a nonhearsay purpose does not address a missing mailing step. Instead, providers should focus on substantive issues: Was the scheduling letter sent to the correct address? Did it allow sufficient advance notice? Were the examination location and timing reasonably convenient? Did the provider or assignor have a legitimate excuse for non-appearance?

The decision also highlights the value of retaining certified stenographers for EUO proceedings. The sworn transcript addresses nonappearance. Other evidence may still be necessary to prove mailing, timeliness and the remaining parts of the defense.

Key Takeaway

The letters did not require a business-record foundation for their nonhearsay use. The insurer separately established mailing and nonappearance; the result does not make a copy of a scheduling letter proof of its own dispatch.

Nonhearsay purpose does not prove mailing by itself

Sin Medical v Travelers, decided August 18, 2016, concerned an insurer’s cross-motion based on missed examinations under oath. The provider did not challenge an earlier finding of timely denial. The insurer established timely mailing of the scheduling letters and supplied sworn stenographic transcripts of nonappearance. The Appellate Term granted dismissal.

The hearsay ruling concerned why the letters were offered. Their content identified the notice sent; it was not being offered as proof that every assertion in a letter was true. That did not make the letters self-proving evidence of their own mailing.

Keep the separate parts of the showing separate

Identify the scheduling letter and the intended recipient. Then identify the evidence of mailing. Finally, identify the evidence that the scheduled examination did not take place because the person did not appear. A copy of the notice does not establish all those facts.

The published opinion also depended on the scope of the appeal. Timely denial had already been found and was not challenged. A reader should not assume that an insurer in another case can omit denial proof simply because the Sin Medical discussion focused on the letters.

The Wheatley mailing note provides a useful contrast. Documents resembling mailing proof did not establish the required showing there. The cases are consistent once the purpose of the document is separated from the evidence that an act of mailing occurred.

Read the transcript for what it records

A sworn stenographic transcript may document what occurred at a scheduled examination. Check the date, the person expected and the basis for identifying nonappearance. A transcript of one appointment does not establish a different appointment merely because the parties are the same.

Sin Medical accepted the transcripts in its record. It did not establish that a transcript is immune from an accuracy objection or categorically superior to every affidavit. Nor did it decide every excuse, scheduling dispute or timeliness question that may arise in another EUO matter.

The EUO hub provides the broader procedural context. This note addresses the evidentiary purpose of the scheduling letters, not a complete test for every no-show defense.

Watch for a change in purpose

A party may initially offer a document to show notice and later rely on its assertions as true. At that point the foundation question can change. People v Jones illustrates why a limiting purpose must remain consistent with the use made of the evidence.

So for motion preparation, just write a very brief summary next to each exhibit that tells you what fact it supports and that will make it easier to find gaps before the papers are served and then it also keeps your objection focused so instead of just saying generally I don’t think this is good evidence, you can say I object because there’s no foundation for how this was mailed.

Historical note: Sin Medical accepted letters for a nonhearsay purpose while separately requiring mailing and nonappearance proof; its result does not abolish CPLR 4518 requirements for records offered for their truth.

Connect to the Encyclopedia

Start with the CPLR 4518 business-records hub. Compare the evidentiary purpose, witness knowledge and result in these notes:

• Wheatley: mailing proof and notice compliance
• Manges: the origin of electronic data
• Jones: retrieval versus knowledge of record creation
• Etienne: third-party billing and the later appeal
• V.S. Medical: the contrasting trial foundation problem

For help assessing evidence in a pending civil matter, contact the firm with the complete records, motion papers and any court order. This historical discussion is general information, not advice on a particular file.