Charles Deng Acupuncture, P.C. v Titan Ins. Co. 2016 NY Slip Op 26211

Medical provider challenged the insurer’s attempt to use the transcript or “bust statement” as proof of no show.  The Court said as follows:

This Court finds that given the reliability of unsworn statements made by attorneys as officers of the court (22 NYCRR § 700.1[9] ), and the standards and licensing requirements of notaries in the State of New York (N.Y. CLS Exec § 130), and the notary’s certificate with its “presumptive evidence of the facts contained in such certificate” (N.Y. CLS Exec § 137), and the language within the certificate “THAT the within is a true and accurate transcript of this statement on the record,” and given that the Court credits the testimony of the defendant’s witnesses that the transcripts were generated in the usual course of its business and it was in the usual course of its business to generate such a document, and further given that such transcripts are routinely used and accepted by courts in motions for summary judgment, and given that plaintiff, as an “interested party” had the opportunity to “contradict, by other evidence, the certificate of a notary public,” and the failure of the plaintiff to appear at trial or to contradict by other evidence the certificate of the respective notaries, this Court admits into evidence all the EUO transcripts in this matter. The Court further notes that it would be the duty of the defendant to make a record when a party or assignor fails to appear two times for an EUO because unless documented there is no basis to deny benefits for a failure to appear at an EUO under the no-fault law (Stephen Fogel Psychological, P.C., supra.).

This Court recognizes there is a qualitative difference between a transcript containing pre-trial testimony of a party where CPLR 3117(a)(2) applies and a transcript which contains an unsworn statement which is certified by the stenographer who is a notary and where CPLR 4518(a) may apply.

The Court in CPT Med. Serv., PC v. Utica Mut. Ins., 12 Misc.3d 237; 811 N.Y.S.2d 909; 2006 N.Y. Misc. LEXIS 498; 2006 N.Y. Slip Op 26098; 235 NYLJ 64 (Civil Ct., Bernice D. Siegal, J. 3/9/2006) determined that an EUO transcript, which involved an assignor who was not a party to the action, cannot be used in the same manner as a real party in interest under CPLR 3117. This decision is consistent with other holdings regarding the use of depositions from 50–H hearings and the inadmissibility of such transcripts when used against parties who were not given prior notice of such proceedings. See and cf. Rivera v. New York City Tr. Auth., 54 AD3d 545, 863 N.Y.S.2d 201, 2008 N.Y.App. Div. LEXIS 6548, 2008 N.Y. Slip Op 6684 (N.Y.App. Div. 1st Dep’t 2008). But in the present matter, the real party in interest, the respective providers, never gave any testimony whatsoever because it is alleged each failed to appear altogether. None of the cases cited by either side considered whether the EUO transcript can be used as a business record at trial under CPLR 4518(a).

The Court in Rizz Mgt. Inc. v. State Farm Mut. Auto. Ins. Co., 20 Misc.3d 1102(A), 867 N.Y.S.2d 20, 2008 N.Y. Misc. LEXIS 3400, 2008 N.Y. Slip Op 51191(U), 240 N.Y.L.J. 11 (N.Y. Dist. Ct., Andrew M. Engel, J., 2008), in the context of a motion for summary judgment, refused to consider the EUO transcript, but that Court had a very good reason for doing so because, “(n)otably absent from the transcripts submitted are certifications as to the transcripts’ accuracy, executed by the Notary Public who purportedly took the testimony.” See Rizz Mgt. Inc. v. State Farm Mut. Auto. Ins. Co., 20 Misc.3d 1102(A). In the instant matter, these certifications are attached to each of the transcripts.

Plaintiff argues that the transcripts are neither affirmations of counsel nor affidavits of lay persons and are nothing but self-serving. Plaintiff further argues that the stenographer transcribes nothing more than an unsworn statement of what was said by defendant’s counsel. But most business records are not affirmations of counsel or affidavits, but simply records kept in the usual course of business or profession to reflect “any act, transaction, occurrence or event.” (See CPLR 4518[a] ). What makes the EUO transcripts “inherently highly trustworthy” is the consequences to the attorney who misleads the Court (Judiciary Law § 487, 90, Appendix, Rules of Professional Conduct Rule 3.3), the loss of licensure of the notary public for failing to accurately transcribe which is the backbone which allows the “presumptive evidence of the facts contained in such (stenographer’s) certificate” (N.Y. CLS Exec § 137), and the right of the plaintiff to cross examine and otherwise challenge the defendant’s witnesses. The arguments that plaintiff has made in its memorandum really apply to the weight given the EUO transcripts and not the admissibility of these exhibits as business records.

This Court now weighs the evidence in the form of the EUO transcripts, along with the testimony regarding the policies and procedures of the defendant, and finds that the defendant has proven by a preponderance of the evidence that the providers have failed to appear at least two times for their respectively scheduled EUOs. No provider appeared at trial to testify.



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