Radzyminski v Nalbone
Annotate this CaseDecided on September 9, 2009
Family Court, Albany County
Pamela J. Radzyminski, Petitioner,
against
James G. Nalbone, Respondent.
: V-5741/2-05/08G
APPEARANCES:
FOR PETITIONER:
Peter J. Hickey, Esq.
FOR RESPONDENT:
Michael P. Friedman, Esq.
ATTORNEY FOR THE CHILDREN:
Ruth Tompkins Brigham, Esq.
W. Dennis Duggan, J.
The father has moved pursuant to CPLR 3123(c) for reasonable expenses and attorneys fees associated with having to prove his child's medical records at trial after the mother refused to admit to their genuineness. The Court denies this motion because it was not timely made and because the mother had no way to reasonably ascertain that the records sent to her were genuine.
CPLR 3123 sets up a procedure meant to expedite trials by eliminating the need to prove facts not in controversy or the need to produce third parties to establish routine foundation requirements.
There are three categories of evidence that are covered by 3123. First, a party can be requested to admit that documents are genuine. Second, they can be requested to admit that photographs are correct and fair. Third, the party can be requested to admit the truth of any matter of fact. This motion [*2]involves the first category, the genuineness of documents.
The statute requires that copies of the documents for which an admission of genuineness is requested be served on the other party. The genuineness is deemed admitted unless the other party responds by affidavit that the documents are not genuine or sets forth in detail why they can not truthfully admit or deny the genuineness of the documents. They may also admit the genuineness of the documents with a material qualification. Even with an admission, the statute provides that the documents "shall be subject to all pertinent objections to admissibility which may be interposed at trial." If a party refuses to admit the genuineness of a document that is later proved to be genuine, the other party "may move at or immediately following the trial for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees," unless the court finds that there "were good reasons for the denial."
In this case, the Court finds that the mother had good reasons for the denial of the genuineness of the purported medical records of her daughter. First, the mother could not possibly be expected to know what documents make up her child's medical record, let alone that they were genuine. Second, even if she went to the doctor's office with the copy of the records sent to her and compared that set with the set maintained in the doctor's office, she could only tell that one set matched the other. She could not tell if the records in the doctor's office were genuine or authentic. No doubt the mother would have faith in her child's doctor to maintain authentic records, but this is not the same thing as her having personal knowledge of their authenticity. In Taylor v. Blair, 116 AD2d 204, the court was presented with a wrongful death action against the installer of a furnace. The claim was that the furnace was negligently installed resulting in the victim's death by carbon monoxide poisoning. The court held that it was improper to request the furnace company to admit the cause of death, even though such fact was readily ascertainable by a review of the death certificate or autopsy report.
Even if the mother could attest to the genuineness of the doctor's records, requiring her to go to the doctor's office to make a line by line comparison would not constitute ascertainment "upon reasonable inquiry" as envisioned by the statute. Finally, if the mother had admitted to the genuineness of the records sent to her, this would not have obviated the need for the father to produce a foundation witness. An admission of genuineness by the mother would not be a concession to "the admissibility of the provider's [records] as a business record, pursuant to CPLR 4518, so as to constitute [*3]proof of the act, transaction, occurrence or event' set forth therein" (Bajaj v. General Assurance, 18 Misc 3d 25, 28).
Supporting this determination are three other circumstances. First, the Notice To Admit sent to the mother requested her to furnish "a sworn, written admission to the facts set forth below." The facts set forth below were the attached medical records of the mother's child. Obviously, the mother would have no way of determining "the truth of the facts" set forth in the medical records. No doubt, the request was meant to be an admission to the "genuineness of the records," but it did not say that. Second, the Notice To Admit supplied a set of medical records with a certification that failed to meet the requirements of CPLR 3122-a. The Notice To Admit statute does not require that the documents, for which an admission of genuineness is sought, be obtained in any particular way or with any particular formality. However, if the father desired that the mother admit to the genuineness of a set of medical records, at a minimum, he should have supplied her with properly certified copies. Third, the documents sent to the mother contained her child's medical records from three other medical providers. Whether the child's current doctor could properly certify the records of another physician is not a question under review on this motion. However, it does go to the question of whether the mother had good reasons to refuse to admit and, on that point, it favors the mother.
The mother also objects that the father's motion is untimely because the statute requires that it be made immediately following the trial and the motion was made thirty-nine days after the trial concluded. To support this position she cites Halligan v. Glazebrook, 59 Misc 2d 712, which held that such a motion made twenty-six days after the trial ended was untimely. In Halligan, the motion was made four days after the trial on damages ended but the proof at issue arose at the earlier liability trial before a different judge.
The CPLR uses the term "immediate" in several places with different meanings. CPLR 3212 allows the court to conduct an "immediate trial" on a summary judgment motion if only damages or an issue raised under CPLR 3211(a) or (b) are involved. In this sense, the term means something akin to the next order of business. No one would interpret immediate, as used in this context, to mean straight away. CPLR 3211(c) uses the term immediate in the same manner. CPLR 5233(c) allows a court to order the "immediate sale" of property to satisfy a judgment "if the urgency of the case requires." In the sense used in that section, immediately obviously means as soon as possible. CPLR 6313 provides that on a motion for a preliminary injunction, the court [*4]may issue a temporary restraining order if the plaintiff can show "immediate and irreparable injury." In this sense, the uses of immediate means at that very moment. CPLR 1333, having to do with the civil forfeiture of the proceeds of a crime, uses immediate in the same sense as CPLR 6313. CPLR 5241 governs income executions for support enforcement. It requires that when a court sets a medical support order, the parent's employer must immediately enroll any of the parent's dependants in the employer sponsored health insurance plan without regard to seasonal enrollment rules. In this sense, immediate means right away. CPLR 5242(c)(1) permits a court to make a finding that there "is good cause not to issue an income deduction order immediately" in a child support case. Without good cause, the court must issue the IDO at the same time that it issues the support order.Finally, CPLR 304 allows a court to extend the filing time to commence a special proceeding by five days if "circumstances prevent an immediate filing." In this sense, immediate means that the petitioner is not able to file his petition with the clerk of the court at the very time he wishes to commence the proceeding.
Taking all of the above examples under consideration, this Court generally agrees with the reasoning of Halligan that immediately means right away or without undue delay but not to the extent that it should be considered a statute of limitations. The rationale for making these motions "immediately" is to allow the trial judge to consider the materiality of the proven fact at issue and how it was proven at trial when the issue is fresh in her mind. Even though the Individual Assignment System would generally result in the trial judge hearing all post-trial motions, thereby ameliorating the need for the immediacy of a 3123 motion, it is not within the court's provenance to question or second guess the Legislature as to their purpose or the continued validity of that purpose when the language is clear. In the case of CPLR 3123, support for a conclusion that the Legislature intended immediately to mean right away or as soon as possible can be gleaned from the fact that the statute's first direction is to make the motion at trial and the court's determination must be made outside the presence of the jury. CPLR 104 does provide that the act "shall be liberally construed to secure the just, speedy and inexpensive determination of every judicial proceeding." However, a direction to liberally construe a statute is not a license for a court to disregard a clear direction of the Legislature because there was "no harm-no foul." The requirement that this motion be made immediately should work no major inconvenience on the trial bar. At the end of a trial, a party could move to request more time to make the motion and CPLR 2004 gives the [*5]court the authority to extend virtually any time limit upon good cause shown. In this case, the medical records in dispute came into evidence twenty-three days before the end of the trial and father did not move for expenses until thirty-nine days after the trial. At the end of the trial he made no request for an extension of time nor has he, on this motion, offered any good reason for the thirty-nine day delay in making the motion.
For all these reasons, the motion by the father for an award of costs associated with proving the child's medical records at trial is denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
DATED: SEPTEMBER 9, 2009
_______________________________
W. Dennis Duggan, F.C.J.
Entered in the Office of the Clerk
of the Family Court, State of New
York, County of Albany on
September 9, 2009
David B. Cardona, Chief Clerk
By:
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