Judiciary Law § 487 is an ancient statute, emanating from long-ago England centuries before Brexit. In Charles Deng Acupuncture, P.C. v Titan Ins. Co. 2016 NY Slip Op 26211 Decided on June 30, 2016 Civil Court Of The City Of New York, Kings County Montelione, J. we see (what appears to us) a unique and completely new application of the statute to litigation.
Deng is a no-fault first-party no-fault benefits case, which are very common in Civil Court, and often end up in the Appellate Term. Put succinctly, health providers are in a constant battle with auto insurance companies over payment, which requires a somewhat complicated billing/denial/examination under oath process.
Here is the pay-off paragraph, which discusses whether a transcript of a no-show is hearsay and whether it may be a business record exception to the hearsay rule.
“When the issue involves EUOs, defendant must prove that its EUO requests were timely mailed and that plaintiff’s assignor failed to appear for same. See Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622(U) (App Term 9th & 10th Jud. Dists. 2011); Crotona Heights Medical, P.C. v. Farm Family Casualty Ins. Co., 27 Misc [*2]3d. 134(A) (App Term 2d, 11th & 13th Jud. Dists. 2010); Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept. 2006). “Such a showing is established by affidavit on motion for summary judgment and by live testimony at trial (see generally Great Wall, 16 Misc. id at 25; Power Acupuncture P.C. v. State Farm Mut. Auto Ins. Co., 11 Misc 3d 1065, 816 N.Y.S.2d 700, 2006 NY Slip Op 50393[U] [Civ. Ct, King’s County 2006]; Roberts Physical Therapy, P.C. v. State Farm Mut. Auto Ins. Co., 14 Misc 3d 1230(A), 836 N.Y.S.2d 495, 2006 NY Slip Op 52565[U] [Civ-Ct, Kings County 2006]; AVA Acupuncture P.C. v. ELCO Administrative Services Co., 10 Misc 3d 1079(A), 814 N.Y.S.2d 889, 2006 NY Slip Op 50158[U] [Civ Ct, Kings County 2006].” See New Era Massage Therapy PC v. Progressive Cas. Ins. Co., 2009 NY Misc. LEXIS 2554, 242 N.Y.L.J. 2 (NY Sup. Ct. 2009).”
“This court must now consider whether the EUO transcripts, some of which are electronically signed, meet the requirements of the business exception to the hearsay rule under CPLR 4518 (a). Here, whether in or out of court, an attorney is an officer of the court (22 NYCRR § 700.1[a]) and is subject to discipline and severe sanctions if s/he misleads the court (Judiciary Law § 487, Appendix, Rules of Professional Conduct Rule 3.3).”