Preview
FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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NAJAH STEVENS,
MOTION IN LIMINE TO
Plaintiff, PRECLUDE REFERENCE
TO AND REDACT
-against- PLAINTIFF’S ALLEGED
STATEMENTS IN
IRT PARTNERSHIP and SDHR MANAGEMENT, LLC, MEDICAL RECORDS
Defendant. Index No.: 521039/2017
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Memorandum of
Law
ASHLEY N. JACOBY, ESQ., being an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the truth of the following under the penalties of
perjury:
I am an associate attorney at WINGATE RUSSOTTI SHAPIRO MOSES & HALPERIN,
LLC, attorneys for plaintiff herein, and as such, am fully familiar with the facts and
circumstances of this case based upon a review of the file maintained by my office.
This affirmation is submitted in support of the plaintiff’s motion in limine regarding the
plaintiff’s alleged statement at the emergency room. For three reasons, the aforesaid emergency
room records must be redacted and defendants must be precluded from referencing the alleged
statement.
The entries contained in the medical records are not germane to plaintiff’s diagnosis
or treatment and are therefore not admissible.
First, it is well-settled that entries contained in a medical record that are not germane to
plaintiff’s diagnosis or treatment are inadmissible as hearsay. Williams v. Alexander, 309 N.Y.
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283 (1955). In Williams v. Alexandra, supra, the Court of Appeals stated: “[A] memorandum
made in a hospital record of acts or occurrences . . . not germane to diagnosis or treatment, is not
admissible under section 374-a, and so it has been almost universally held under the identical or
similar statutes of other jurisdictions.” 309 N.Y. 283 at 287. See also Benavides v. City of New
York, 982 N.Y.S.2d 85 (1st Dep’t 2014); Grant v. New York City. Tr. Auth., 963 N.Y.S.2d 63
(1st Dep’t 2013); and Beecham v. New York City Tr. Auth., 863 N.Y.S.2d 433 (1st Dep’t 2008).
In Beecham v. New York City Trans. Auth., supra, the Appellate Division, First
Department, upheld the trial court’s decision to refuse to admit into evidence the history portion
of plaintiff’s emergency room record because it “was not germane to plaintiff’s diagnosis or
treatment.”
“While the fact that the patient was struck by an automobile may be relevant to diagnosis
or treatment, the fact that the automobile passed through a red light is clearly medically
irrelevant”. See Prince/Richardson on Evidence, Farrell, 11thed., §8-310). Likewise, here, the
fact that plaintiff suffered a fall is relevant, but what she fell on or because of is not.
Thus, the alleged statement by the plaintiff that “[plaintiff] presents the [sic] emergency
department after a full [sic] this evening where she says she tripped over her nephew’s feet” is
“not germane to plaintiff’s diagnosis or treatment.” Id. Therefore, the Court should grant the
plaintiff’s motion and allow for the redaction of any such or related statements from the medical
records.
Defendants have not disclosed any witnesses who can identify Plaintiff as the source
of the alleged statements and cannot call any hospital physicians or staff now.
Secondly, Defendants have disclosed only one medical expert or “damages” witness, Dr.
Richard Weiss, a non-treating orthopedist, and jury selection is now complete. As such, there is
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no witness that Defendants can call so as to demonstrate he or she has a specific and independent
recollection of Plaintiff, and therefore has a specific and independent recollection of any
statements attributed to Plaintiff in the medical records.
“Hearsay is a statement made out of court... offered for the truth of the fact asserted in the
statement.” People v. Goldstein, 6 NY3d 119,810 N.Y.S.2d 100 (2005), quoting People v.
Romero, 78 NY2d 355, 575N.Y.S.2d 802 (1991); see also, Farrell, Prince, Richardson on
Evidence, section 8-101 at p. 497 (11th Ed. 1995).
New York follows an “orthodox” rule that prior inconsistent statements have no
testimonial value. See, People v. Freeman, 9 NY2d600, 217 N.Y.S.2d 5 (1961); People v. Goetz,
12 NY2d 689, 233 N.Y.S.2d476 (1962); People v. Ferraro, 293 NY 51 (1944); Matter of Roge
v.Valentine, 280 NY 268 (1939); People v Eli, 250 AD2d 418, 92 NY2d851 (1stDept. 1998);
People v. Alicea, 229 AD2d 80, 90 NY2d 890 (1st Dept. 1997); People v. Auricchio, 141 AD2d
552, 72 NY2d 954 (2d Dept. 1998). The history portion of a hospital record is admissible only if
it is relevant to diagnosis and treatment, otherwise it is not made in the ordinary course of
business. Williams v. Alexander, 309 NY 283[1955]).
One seeking to have such entries admitted as an admission must establish that the patient
was the source of the information. Thompson v. Green Bus Lines, 280 AD2d 468 [2d Dept.
2001]; Quispe v. Leml & Wolff, 266 AD2d 95 [1st Dept. 1999]; Musaid v. Mercy Hospital, 249
AD2d 958 [4thDept. 1998]; Ginsberg v. NSUH, 213 AD2d592 [2d Dept. 1995], U.86 NY2d 701
[1995].
In Grant v. New York City Tr. Auth., 2013 NY Slip Op 02318 (1st Dept April 4, 2013), a
defense verdict was reversed because of the admission of testimony of a physician from Jacobi
Medical Center. This physicians, who examined plaintiff after the accident at issue, according to
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his notes, wrote that plaintiff slipped and fell on wet ground. This was inconsistent with her
claim at trial that she tripped on a raised bracket on a step.
On cross-examination, the physician testified that he had no independent recollection of
plaintiff and he was uncertain from where the information in his notes came. He only “assumed”
that the statement came from plaintiff. The Court held, “[w]e disagree with the trial court's ruling
that the statement made by the doctor was relevant to plaintiff's fall. Generally, admissions not
germane to the treatment or diagnosis of a plaintiff's injuries are not admissible under the
business records exception to the hearsay rule. Beechamv New York City Tr. Auth., 54 AD3d
594 [1st Dept2008]; see also, Williams v Alexander, 309 NY 283 [1955]). The Court continued,
“there must be evidence that connects the party to the entry. Coker v Bakkal Foods, Inc., 52
AD3d 765 [2d Dept 2008] lv. denied 11NY3d 708 [2008]; see also, Cuevas v Alexander's,Inc.,
23 AD3d 428 [2d Dept 2005]).
The Court ultimately concluded:
Here, plaintiff testified that she slipped on a metal bracket protruding from a
subway step. The hospital record indicating that she slipped on wet ground should
not have been presented to the jury since there was no proper foundation for its
admission, inasmuch as it was unclear whether plaintiff was the source of that
information (see Echeverria v City of New York,166 AD2d 409, 410 [2d Dept
1990]). Indeed, plaintiff testified that she did not tell the orthopedic surgeon that
she slipped on a wet surface. The admission of the hospital record thus was not
harmless error since it went to the crux of plaintiff's allegations. Id.
Similarly, here, there is no evidence or disclosure that any physician or hospital staff
member would be able to attribute, with specificity and an independent recollection, the
aforementioned statement to Plaintiff. Indeed, defendants have wholly failed to disclose any
witnesses who were employed and working in the emergency room the morning of Plaintiff’s fall
and therefore could possible attribute the statement at issue to Plaintiff. As such, any testimony
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or reference to medical records concerning the alleged statement must be precluded.
The alleged statement is not an inconsistent statement.
It should be noted that, to the extent defendants intend to illicit testimony regarding the
alleged statement made at the emergency room, the purpose of the same is to highlight an
admission against interest. In order to qualify as such, it must be inconsistent with plaintiff’s
position at trial.
Civil Practice Law and Rules Section 4514 entitled “Impeachment of witness by prior
inconsistent statement” provides:
In addition to impeachment in the manner permitted by common law, any party
may introduce proof that any witness has made a prior statement inconsistent with
his testimony if the statement was made in a writing subscribed by him or was
made under oath. (emphasis added).
Clearly, inquiries by defendants into statement contained in a hospital report are
inappropriate because lawsuits may too easily be transformed into a litigation of sub-issues.
Here, plaintiff will not deny that her feet got tripped up with her nephew’s feet during her
fall. Indeed, plaintiff testified in part to the same during her examination before trial. As the
statement itself is not inconsistent, but rather only outlines a single component of the manner of
plaintiff’s fall and does not by itself describe the cause of the fall at issue. As such it should not
be used to muddy the water and create a “trial within a trial”.
CONCLUSION
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WHREFORE, the Court should grant the plaintiff’s motion in limine to redact and
exclude testimony concerned statements in plaintiff’s medical records attributed to her because
the alleged statement is inadmissible.
Dated: New York, New York
October 28, 2023
Yours, etc.,
___________________________________________
Ashley Jacoby, Esq.
WINGATE RUSSOTTI SHAPIRO MOSES &
HALPERIN, LLP
Attorneys for Plaintiff
NAJAH N. STEVENS
420 Lexington Avenue
Suite 2700
New York, NY 10170
Tel: 212-986-7353
TO: Jeffrey B. Gold
The Gold Law Firm
Attorney for Defendant
SDHR MANAGEMENT, LLC
IRT PARTNERSHIP
1666 Newbridge Road
2nd Floor
Bellmore, NY 11710
(516) 512-6334
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AFFIRMATION OF SERVICE
STATE OF NEW YORK )
).SS.:
COUNTY OF NEW YORK )
Ashley Jacoby, a duly admitted attorney licensed to practice in the State of New York,
affirms under penalty of perjury:
Affirmant is not a party to this action, is over the age of 18 years of age and resides
within the State of New York. On October 28, 2023 affirmant served the within Motion in
Limine upon:
All Parties
Via Electronic Filing with the Court System of the State of New York and Electronic
Mail.
Ashley Jacoby
-
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Preview
FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X NAJAH STEVENS, MOTION IN LIMINE TO Plaintiff, PRECLUDE REFERENCE TO AND REDACT -against- PLAINTIFF’S ALLEGED STATEMENTS IN IRT PARTNERSHIP and SDHR MANAGEMENT, LLC, MEDICAL RECORDS Defendant. Index No.: 521039/2017 --------------------------------------------------------------------X Memorandum of Law ASHLEY N. JACOBY, ESQ., being an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: I am an associate attorney at WINGATE RUSSOTTI SHAPIRO MOSES & HALPERIN, LLC, attorneys for plaintiff herein, and as such, am fully familiar with the facts and circumstances of this case based upon a review of the file maintained by my office. This affirmation is submitted in support of the plaintiff’s motion in limine regarding the plaintiff’s alleged statement at the emergency room. For three reasons, the aforesaid emergency room records must be redacted and defendants must be precluded from referencing the alleged statement. The entries contained in the medical records are not germane to plaintiff’s diagnosis or treatment and are therefore not admissible. First, it is well-settled that entries contained in a medical record that are not germane to plaintiff’s diagnosis or treatment are inadmissible as hearsay. Williams v. Alexander, 309 N.Y. 1 1 of 7 FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023 283 (1955). In Williams v. Alexandra, supra, the Court of Appeals stated: “[A] memorandum made in a hospital record of acts or occurrences . . . not germane to diagnosis or treatment, is not admissible under section 374-a, and so it has been almost universally held under the identical or similar statutes of other jurisdictions.” 309 N.Y. 283 at 287. See also Benavides v. City of New York, 982 N.Y.S.2d 85 (1st Dep’t 2014); Grant v. New York City. Tr. Auth., 963 N.Y.S.2d 63 (1st Dep’t 2013); and Beecham v. New York City Tr. Auth., 863 N.Y.S.2d 433 (1st Dep’t 2008). In Beecham v. New York City Trans. Auth., supra, the Appellate Division, First Department, upheld the trial court’s decision to refuse to admit into evidence the history portion of plaintiff’s emergency room record because it “was not germane to plaintiff’s diagnosis or treatment.” “While the fact that the patient was struck by an automobile may be relevant to diagnosis or treatment, the fact that the automobile passed through a red light is clearly medically irrelevant”. See Prince/Richardson on Evidence, Farrell, 11thed., §8-310). Likewise, here, the fact that plaintiff suffered a fall is relevant, but what she fell on or because of is not. Thus, the alleged statement by the plaintiff that “[plaintiff] presents the [sic] emergency department after a full [sic] this evening where she says she tripped over her nephew’s feet” is “not germane to plaintiff’s diagnosis or treatment.” Id. Therefore, the Court should grant the plaintiff’s motion and allow for the redaction of any such or related statements from the medical records. Defendants have not disclosed any witnesses who can identify Plaintiff as the source of the alleged statements and cannot call any hospital physicians or staff now. Secondly, Defendants have disclosed only one medical expert or “damages” witness, Dr. Richard Weiss, a non-treating orthopedist, and jury selection is now complete. As such, there is 2 2 of 7 FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023 no witness that Defendants can call so as to demonstrate he or she has a specific and independent recollection of Plaintiff, and therefore has a specific and independent recollection of any statements attributed to Plaintiff in the medical records. “Hearsay is a statement made out of court... offered for the truth of the fact asserted in the statement.” People v. Goldstein, 6 NY3d 119,810 N.Y.S.2d 100 (2005), quoting People v. Romero, 78 NY2d 355, 575N.Y.S.2d 802 (1991); see also, Farrell, Prince, Richardson on Evidence, section 8-101 at p. 497 (11th Ed. 1995). New York follows an “orthodox” rule that prior inconsistent statements have no testimonial value. See, People v. Freeman, 9 NY2d600, 217 N.Y.S.2d 5 (1961); People v. Goetz, 12 NY2d 689, 233 N.Y.S.2d476 (1962); People v. Ferraro, 293 NY 51 (1944); Matter of Roge v.Valentine, 280 NY 268 (1939); People v Eli, 250 AD2d 418, 92 NY2d851 (1stDept. 1998); People v. Alicea, 229 AD2d 80, 90 NY2d 890 (1st Dept. 1997); People v. Auricchio, 141 AD2d 552, 72 NY2d 954 (2d Dept. 1998). The history portion of a hospital record is admissible only if it is relevant to diagnosis and treatment, otherwise it is not made in the ordinary course of business. Williams v. Alexander, 309 NY 283[1955]). One seeking to have such entries admitted as an admission must establish that the patient was the source of the information. Thompson v. Green Bus Lines, 280 AD2d 468 [2d Dept. 2001]; Quispe v. Leml & Wolff, 266 AD2d 95 [1st Dept. 1999]; Musaid v. Mercy Hospital, 249 AD2d 958 [4thDept. 1998]; Ginsberg v. NSUH, 213 AD2d592 [2d Dept. 1995], U.86 NY2d 701 [1995]. In Grant v. New York City Tr. Auth., 2013 NY Slip Op 02318 (1st Dept April 4, 2013), a defense verdict was reversed because of the admission of testimony of a physician from Jacobi Medical Center. This physicians, who examined plaintiff after the accident at issue, according to 3 3 of 7 FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023 his notes, wrote that plaintiff slipped and fell on wet ground. This was inconsistent with her claim at trial that she tripped on a raised bracket on a step. On cross-examination, the physician testified that he had no independent recollection of plaintiff and he was uncertain from where the information in his notes came. He only “assumed” that the statement came from plaintiff. The Court held, “[w]e disagree with the trial court's ruling that the statement made by the doctor was relevant to plaintiff's fall. Generally, admissions not germane to the treatment or diagnosis of a plaintiff's injuries are not admissible under the business records exception to the hearsay rule. Beechamv New York City Tr. Auth., 54 AD3d 594 [1st Dept2008]; see also, Williams v Alexander, 309 NY 283 [1955]). The Court continued, “there must be evidence that connects the party to the entry. Coker v Bakkal Foods, Inc., 52 AD3d 765 [2d Dept 2008] lv. denied 11NY3d 708 [2008]; see also, Cuevas v Alexander's,Inc., 23 AD3d 428 [2d Dept 2005]). The Court ultimately concluded: Here, plaintiff testified that she slipped on a metal bracket protruding from a subway step. The hospital record indicating that she slipped on wet ground should not have been presented to the jury since there was no proper foundation for its admission, inasmuch as it was unclear whether plaintiff was the source of that information (see Echeverria v City of New York,166 AD2d 409, 410 [2d Dept 1990]). Indeed, plaintiff testified that she did not tell the orthopedic surgeon that she slipped on a wet surface. The admission of the hospital record thus was not harmless error since it went to the crux of plaintiff's allegations. Id. Similarly, here, there is no evidence or disclosure that any physician or hospital staff member would be able to attribute, with specificity and an independent recollection, the aforementioned statement to Plaintiff. Indeed, defendants have wholly failed to disclose any witnesses who were employed and working in the emergency room the morning of Plaintiff’s fall and therefore could possible attribute the statement at issue to Plaintiff. As such, any testimony 4 4 of 7 FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023 or reference to medical records concerning the alleged statement must be precluded. The alleged statement is not an inconsistent statement. It should be noted that, to the extent defendants intend to illicit testimony regarding the alleged statement made at the emergency room, the purpose of the same is to highlight an admission against interest. In order to qualify as such, it must be inconsistent with plaintiff’s position at trial. Civil Practice Law and Rules Section 4514 entitled “Impeachment of witness by prior inconsistent statement” provides: In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath. (emphasis added). Clearly, inquiries by defendants into statement contained in a hospital report are inappropriate because lawsuits may too easily be transformed into a litigation of sub-issues. Here, plaintiff will not deny that her feet got tripped up with her nephew’s feet during her fall. Indeed, plaintiff testified in part to the same during her examination before trial. As the statement itself is not inconsistent, but rather only outlines a single component of the manner of plaintiff’s fall and does not by itself describe the cause of the fall at issue. As such it should not be used to muddy the water and create a “trial within a trial”. CONCLUSION 5 5 of 7 FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023 WHREFORE, the Court should grant the plaintiff’s motion in limine to redact and exclude testimony concerned statements in plaintiff’s medical records attributed to her because the alleged statement is inadmissible. Dated: New York, New York October 28, 2023 Yours, etc., ___________________________________________ Ashley Jacoby, Esq. WINGATE RUSSOTTI SHAPIRO MOSES & HALPERIN, LLP Attorneys for Plaintiff NAJAH N. STEVENS 420 Lexington Avenue Suite 2700 New York, NY 10170 Tel: 212-986-7353 TO: Jeffrey B. Gold The Gold Law Firm Attorney for Defendant SDHR MANAGEMENT, LLC IRT PARTNERSHIP 1666 Newbridge Road 2nd Floor Bellmore, NY 11710 (516) 512-6334 6 6 of 7 FILED: KINGS COUNTY CLERK 10/28/2023 08:46 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 10/28/2023 AFFIRMATION OF SERVICE STATE OF NEW YORK ) ).SS.: COUNTY OF NEW YORK ) Ashley Jacoby, a duly admitted attorney licensed to practice in the State of New York, affirms under penalty of perjury: Affirmant is not a party to this action, is over the age of 18 years of age and resides within the State of New York. On October 28, 2023 affirmant served the within Motion in Limine upon: All Parties Via Electronic Filing with the Court System of the State of New York and Electronic Mail. Ashley Jacoby - 7 7 of 7