Recitation, as required by CPLR 2219(a), of the papers considered in the review of the respondent's motion to dismiss this proceeding.

PapersNumbered

Notice of Motion & Affidavits Annexed...........................

Notice of Cross-Motion and Affidavits Annexed .............

Answering Affidavits .......................................................

Replying Affidavits...........................................................

Exhibits ..........................................................................

Memorandum of law........................................................1-2

After oral argument and upon the foregoing cited papers, the decision and order on these memoranda of law is as follows:

This is a licensee holdover proceeding wherein petitioner 20-22 Prince LLC ("petitioner") seeks to recover possession of the rent-controlled premises located at 20-22 Prince Street, Apt. 27, New York, New York 10012 ("premises". Respondent Tsue Kwai Yen ("respondent") has [*2]pled an affirmative defense of succession, alleging that she has succeeded to the tenancy of her mother, Tuck Ming Yuen, the tenant of record of the premises who passed away in November 2007.

The parties have conducted discovery and are presently engaged before this court after several days of trial. Both sides have called witnesses on their behalf and the sole remaining issue is the admissibility of the documents which are the subject of this decision. During the course of discovery, petitioner subpoenaed medical records from the Visiting Nurse Services of New York, medical records from New York-Beekman Downtown Hospital, and municipal records from the NYC Department of Human Resources (HRA/CASA).

While presenting its rebuttal, petitioner sought to introduce the records it subpoenaed from the above-referenced entities and requested a ruling as to their admissibility without foundational witness. Petitioner also seeks a ruling as to whether the statements contained in the records regarding Tuck Ming Yuen's living arrangements are admissible into evidence. Each party has prepared a Memorandum of Law on these issues.

It is undisputed that these records are certified. Petitioner argues that the records from the Visiting Nurse Services of New York, New York-Beekman Downtown Hospital, and NYC Department of Human Resources (HRA/CASA) should be admitted into evidence under CPLR § 4518(c), which dispenses of the need for a foundational witness for "all records, writings and other things referred to in section 2306 [Hospital records; medical records of department or bureau of municipal corporation of the state] and section 2307 [books, papers and other things of a library, department or bureau of a municipal corporation or of the state]" so long as they are properly certified.Respondent argues that the records from the Visiting Nurse Services are neither municipal nor hospital records and cannot be admitted into evidence without a foundational witness because the Visiting Nurse Services of New York is a private company and is neither a hospital nor a governmental entity. Respondent does not object to the admissibility of the hospital or HRA records without a foundational records,. However she challenges whether the statements within the records as to whether Ms. Yuen lives alone are admissible.

With respect to the admissibility of the records themselves, the court finds that the certified hospital records from New York-Beekman Downtown Hospital, and the municipal records from NYC Department of Human Resources (HRA/CASA) can come into evidence under CPLR § 4518(c) because they are clearly hospital and municipal records that fall within the parameters of the statute. The documents from the Visiting Nurse Services of New York, however, are not admissible without a foundational witness under CPLR § 4518(c) as these records were not kept by a hospital or municipality, which are requirements that are specifically provided in the statute. Rather, these records were kept by a private business and can only come into evidence under the business record exception contained in CPLR § 4518(a), if petitioner utilizes a foundational witness.

Respondent also objects to the admissibility of statements within the records regarding Tuck Ming Yuen's living arrangements. Respondent claims these statements cannot come into evidence either under CPLR § 4518(a) - which permits the admissibility of business records into evidence as an exception to hearsay - or 4518(c), because they were made by third party declarants without a duty to provide reliable information or do not concern the objective of the party keeping the records and are therefore hearsay within hearsay and can only come into [*3]evidence under a separate hearsay exception.

Petitioner argues that the statements within the records are admissible because they were relevant to the patient's treatment and discharge at the time they were recorded. Petitioner cites People v. Ortega, 15 NY3d 610 (2010), People v. Greenlee, 70 AD3d 966 (2 Dept. 2010) People v. James, 19 AD3d 616 (2 Dept. 2005), and People v. Caccese, 211 AD2d 796 (3 Dept. 1995) in support. In each of these cases, the courts permitted statements contained in medical records to be admitted into evidence although they did not bear directly upon the patient's medical condition because the statements were relevant to the patient's treatment, diagnosis or discharge. In People v. Ortega and People v. Greenlee, the courts permitted medical records statements regarding domestic violence to be admitted into evidence under a hearsay exception as these statements related directly to the discharge of the patient. The courts reasoned that the information "could be used to develop a discharge plan that would ensure the victim's safety," People v. Greenlee supra at 967. Similarly, in People v. Caccese, the court permitted statements that the child patient was abused by his foster mother into evidence as these statements directly related to the diagnosis and treatment of the patient.

Here too, the court finds that the statements regarding Ms. Yuen's living arrangement fall within the hearsay exception as they were germane to her treatment and discharge. The statements sought to be admitted are with regard to whether Ms. Yuen lived alone or had daily care. It was absolutely relevant to Ms. Yuen's discharge from a hospital, treatment by the Visiting Nurse Services and assistance by HRA as to whether she lived with someone else who could take care of her daily medical, physical and financial needs. Furthermore, Petitioner's witnesses, live-in aides from First Chinese Presbyterian Hospital, who spent around the clock time with Ms. Yuen, have already testified that a patient needs to be living alone to be eligible for home care. The notes documenting whether Ms. Yuen lives alone or already has care are therefore relevant to the sort of treatment that would be recommended by the hospital or agency making the notations.

The court finds the cases cited by Respondent are distinguishable from the facts in the instant proceeding. In Johnson v. Lutz, 253, NY 124, (1930) the Court of Appeals held that statements made by third parties are not admissible even if contained in a record that would be admissible under CPLR § 4518. However, here this rule does not apply to the statements as they were made by third parties that were germane to the treatment and discharge of Ms. Yuen. Furthermore, respondent cites People v. Johnson, 70 AD3d 1188 (3 Dept. 2010), People v. Brown, 262 AD2d 328 (2 Dept. 1999) and Del Toro v. Carroll, 33 AD2d 160 (1 Dept 1969) for the proposition third party statements contained in medical, business and municipal records should be precluded from evidence.

In Del Toro v. Carroll and People v. Johnson, the courts held that third party statements regarding a patient's level of intoxication were inadmissible into evidence at trial as they were not necessary to his treatment and diagnosis, were highly prejudicial to the defendant as they sought to attack his credibility, and were irrelevant to the case. Similarly, in People v. Brown, the court found that statements in a victim's hospital record regarding the identity of a person who inflicted injuries on the victim were not relevant to diagnosis or treatment. However, in the instant case the Del Toro, Johnson and Brown authority is not applicable. Here, the statements sought to be introduced by petitioner are neither prejudicial to respondent nor are being used to attack her [*4]character. Rather, the statements are relevant to the sole issue in the case which is whether she resided with her mother for the two years prior to her mother's passing.Furthermore as previously noted, the court has already ruled that the statements in the records at issue were germane to the treatment of Ms. Yuen.

Respondent correctly raises the issue that the statements contained in the records were most likely made by nonparty declarants whose identities are unknown. While this does not bar the admissibility of the statements, as they were germane to the treatment and discharge of Ms. Yuen, the court will consider this issue when deciding the amount of weight to give to the statements contained in the records.

Accordingly, the court rules that Petitioner's exhibits consisting of records from New York-Beekman Downtown Hospital, and the NYC Department of Human Resources (HRA/CASA) can be admitted into evidence under CPLR § 4518(c), and Petitioner's exhibits consisting of records from the Visiting Nurse Services of New York can be admitted into evidence under CPLR § 4518(a) after being introduced by a foundational witness, along with the statements contained therein regarding Ms. Yuen's living arrangements. The parties have already been directed to appear in Part P for continued trial on June 24, 2011 at 9:30 am.

This constitutes the decision and order of this court.

Dated: Brooklyn, New York

June 6, 2011HON. BRUCE E. SCHECKOWITZ

J.H.C.