Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of Certified Hospital, Library, and Government Records.
CPLR 4518(c) provides a means of dispensing with foundation testimony as a prerequisite to admission of the business records described in CPLR 2306 [1] and 2307 [2] i.e., medical records of a hospital or government entity concerning the condition or treatment of a patient; records of a library; and records of a department or bureau of a municipal corporation or of the state. If the requirements of CPLR 4518(c) are met, the record is "prima facie evidence" of the truth of the facts contained in the record.[3] The offeror must ensure that the certification of the record is proper. The persons authorized by the statute to make the certification are either the head of the organization whose records are in question, any employee of the organization to whom the task of certification has been delegated or a qualified physician. The certificate must demonstrate that the requirements of CPLR 4518(a) have been met, i.e., that the record was made in the regular course of business, that it was the regular course of the business to make a record of this type and that the record was made at or about the time of occurrence of the event recorded.[4]
[1] CPLR 2306. Hospital records; medical records of department or bureau of a municipal corporation or of the state. (a) Transcript or reproduction. Where a subpoena duces tecum is served upon a hospital, or upon a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of records relating to the condition or treatment of a patient, a transcript or a full-sized legible reproduction, certified as correct by the superintendent or head of the hospital, department or bureau or his assistant, or the officer, may be produced unless otherwise ordered by a court. Such a subpoena shall be served at least three days before the time fixed for the production of the records unless otherwise ordered by a court. (b) Delivery to clerk. Where a court has designated a clerk to receive records described in subdivision (a), delivery may be made to him at or before the time fixed for their production. The clerk shall give a receipt for the records and notify the person subpoenaed when they are no longer required. The records shall be delivered in a sealed envelope indicating the title of the action, the date fixed for production and the name and address of the attorney appearing on the subpoena. They shall be available for inspection pursuant to the rules or order of the court.
[2] CPLR § 2307. Books, papers and other things of a library, department or bureau of a municipal corporation or of the state Issuance by court. A subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by a justice of the supreme court in the district in which the book, paper or other thing is located or by a judge of the court in which an action for which it is required is triable. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the library, department, bureau or officer having custody of the book, document or other thing and the adverse party. Such subpoena must be served upon such library, or such department or bureau of such municipal corporation or of the state or an officer having custody of the book, document or other thing and the adverse party at least twenty-four hours before the time fixed for the production of such records unless in the case of an emergency the court shall by order dispense with such notice otherwise required. Compliance with a subpoena duces tecum may be made by producing a full-sized legible reproduction of the item or items required to be produced certified as complete and accurate by the person in charge of such library, department or bureau, or a designee of such person, and no personal appearance to certify such item or items shall be required of such person or designee, unless the court shall order otherwise pursuant to subdivision (d) of rule 2214 of this chapter. Where a stipulation would serve the same purpose as production of the book, document or other thing and the subpoena is required because the parties will not stipulate, the judge may impose terms on any party, including the cost of production of the book or document, and require such cost to be paid as an additional fee to the library, department or officer.
[3] See, e.g., Laduke v. State Farm Insurance Co., 1990, 158 A.D.2d 137, 557 N.Y.S.2d 221 (4th Dep't).
[4] People v. Kinne, 1988, 71 N.Y.2d 879, 527 N.Y.S.2d 754, 522 N.E.2d 1052.
CPLR 4518(c) provides a means of dispensing with foundation testimony as a prerequisite to admission of the business records described in CPLR 2306 [1] and 2307 [2] i.e., medical records of a hospital or government entity concerning the condition or treatment of a patient; records of a library; and records of a department or bureau of a municipal corporation or of the state. If the requirements of CPLR 4518(c) are met, the record is "prima facie evidence" of the truth of the facts contained in the record.[3] The offeror must ensure that the certification of the record is proper. The persons authorized by the statute to make the certification are either the head of the organization whose records are in question, any employee of the organization to whom the task of certification has been delegated or a qualified physician. The certificate must demonstrate that the requirements of CPLR 4518(a) have been met, i.e., that the record was made in the regular course of business, that it was the regular course of the business to make a record of this type and that the record was made at or about the time of occurrence of the event recorded.[4]
[1] CPLR 2306. Hospital records; medical records of department or bureau of a municipal corporation or of the state. (a) Transcript or reproduction. Where a subpoena duces tecum is served upon a hospital, or upon a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of records relating to the condition or treatment of a patient, a transcript or a full-sized legible reproduction, certified as correct by the superintendent or head of the hospital, department or bureau or his assistant, or the officer, may be produced unless otherwise ordered by a court. Such a subpoena shall be served at least three days before the time fixed for the production of the records unless otherwise ordered by a court. (b) Delivery to clerk. Where a court has designated a clerk to receive records described in subdivision (a), delivery may be made to him at or before the time fixed for their production. The clerk shall give a receipt for the records and notify the person subpoenaed when they are no longer required. The records shall be delivered in a sealed envelope indicating the title of the action, the date fixed for production and the name and address of the attorney appearing on the subpoena. They shall be available for inspection pursuant to the rules or order of the court.
[2] CPLR § 2307. Books, papers and other things of a library, department or bureau of a municipal corporation or of the state Issuance by court. A subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by a justice of the supreme court in the district in which the book, paper or other thing is located or by a judge of the court in which an action for which it is required is triable. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the library, department, bureau or officer having custody of the book, document or other thing and the adverse party. Such subpoena must be served upon such library, or such department or bureau of such municipal corporation or of the state or an officer having custody of the book, document or other thing and the adverse party at least twenty-four hours before the time fixed for the production of such records unless in the case of an emergency the court shall by order dispense with such notice otherwise required. Compliance with a subpoena duces tecum may be made by producing a full-sized legible reproduction of the item or items required to be produced certified as complete and accurate by the person in charge of such library, department or bureau, or a designee of such person, and no personal appearance to certify such item or items shall be required of such person or designee, unless the court shall order otherwise pursuant to subdivision (d) of rule 2214 of this chapter. Where a stipulation would serve the same purpose as production of the book, document or other thing and the subpoena is required because the parties will not stipulate, the judge may impose terms on any party, including the cost of production of the book or document, and require such cost to be paid as an additional fee to the library, department or officer.
[3] See, e.g., Laduke v. State Farm Insurance Co., 1990, 158 A.D.2d 137, 557 N.Y.S.2d 221 (4th Dep't).
[4] People v. Kinne, 1988, 71 N.Y.2d 879, 527 N.Y.S.2d 754, 522 N.E.2d 1052.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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