BILL NUMBER: S7523

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to the
business records exception to hearsay

This is one of several measures being introduced at the request of the
Acting Chief Administrative Judge upon the recommendation of her Advi-
sory Committee on Evidence.

                                   I

This measure would amend CPLR 4518(a) to incorporate an additional
requirement for the introduction of a business record, namely, that the
writing or record was made upon the recorder's own personal knowledge;
or from information given to the recorder by someone with personal know-
ledge and a business duty to transmit the information accurately; or
from information received by the recorder which is subject to an excep-
tion to the rule barring the admission of hearsay.  For a hospital or
medical office record, the entry must also be germane to the patient's
treatment or diagnosis.

              

This measure will codify the Court of Appeals' holding in the 1930 case
of Johnson v Lutz (253 NY 124).

                                   II

CPLR 4518(a) sets forth three foundation requirements for the admission
of a business record in evidence as an exception the hearsay exclusion-
ary rule. Over 90 years ago, the Court of Appeals in Johnson v Lutz
found a fourth foundation element. With no mention of this element in
its text, the current statute is on its face misleading. This measure
would correct this omission by requiring, pursuant to Johnson, that the
writing or record sought to be admitted must have been made upon the
recorder's own personal knowledge or from information given to the
recorder by someone with personal knowledge and a business duty to tran-
smit the information accurately.

In Johnson, the Court of Appeals (253 NY at 128) explained that the
business records statute "was not intended to permit the receipt in
evidence of entries based upon voluntary hearsay statements made by
third parties not engaged in the business or under any duty in relation
thereto." Over the years the Court has reaffirmed that holding (People v
Patterson, 28 NY3d 544, 550 (2016)) and noted that the added founda-
tional requirement helps guarantee the truthfulness and reliability of
third-party statements included in a business record admitted in
evidence for the truth of its contents.  Matter of Leon RR, 48 NY2d 117,
123 (1979). Similarly, over 65 years ago, the Court of Appeals, in
Williams v Alexander (309 NY 283 (1955)), added a requirement for the
admission of hospital and medical records. This measure codifies that
requirement by adding to the statute a stipulation that, for a hospital
or medical office record to be admitted, the entry must also be germane
to the patient's treatment or diagnosis. In Williams, the Court pointed
out in that "information that the patient was struck by a motor vehicle
was germane to his treatment but not the statement that the car that
struck the patient was propelled into him when it was struck by another
car (Williams, 309 NY at 288). As stated by the Court:  "(W)hether the
patient was hit by car A or car B, by car A under its own power or
propelled forward by car B, or whether the injuries were caused by the
negligence of the defendant or of another, cannot possibly bear on diag-
nosis or aid in determining treatment." (Id.) Medical testimony about
whether the information is germane to treatment or diagnosis will be
helpful in making the determination. (See People v Pham, 118 AD3d 1159,
1162 (3d Dept 2014); Wright v New York City Hous. Auth., 273 AD2d 378,
379 (2d Dept 2000); Sanchez v Manhattan & Bronx Surface Tr. Operating
Auth., 170 AD2d 402, 404 (1st Dept 1991)). Guide to NY Evidence rule
8.08.

This measure, which would have no fiscal impact, would take effect imme-
diately.

 
LEGISLATIVE HISTORY:

2021-22 OCA-90