Thomas A. Moore and Matthew Gaier

In recent years there have been several changes to the CPLR that make it easier for litigants to compel the production of, and admit, evidence at trial. These statutory amendments can be particularly helpful in medical malpractice actions, and are the subject of this month’s column.

The first such statutory change is the addition of CPLR 2303-a, which is perhaps a little less recent, as it became effective in 2008—but it is important nonetheless. It provides:

Where the attendance at trial of a party or person within the party’s control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with subdivision (b) of rule 2103 to the party’s attorney of record.

While CPLR 2303-a is short and simple, it can have a very big impact at trial. In medical malpractice actions, it provides plaintiffs the unfettered ability to compel defendants who reside out of state to appear at trial. Counsel representing plaintiffs in malpractice actions commonly call defendant physicians as their first witnesses, cross-examine them and elicit critical expert testimony from them in accordance with McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20 (1964). However, for defendants who reside out of state at the time of trial, there had been only very circumscribed ability to compel them to appear on the plaintiffs’ case, which would put the plaintiffs at a distinct disadvantage. CPLR 2303-a ended that.

Prior to that statute, there was some limited ability to compel out-of-state defendants or other witnesses to appear at trial under the common law. For instance, where a litigant is a New York corporation, it may be served with a subpoena in New York that can compel an employee or a former employee to appear. Thus, where a hospital was a defendant in a malpractice action, a physician employed by the hospital at the time of the malpractice could often be compelled, through the hospital, to appear at trial. This is still the case, and it remains a necessary tool where the physician sought to be produced is not a named defendant but is someone for whom the hospital would be liable, as is often the case with doctors who were residents at the time of the malpractice.

This common law rule has its genesis in the Court of Appeals’ decision in Standard Fruit & S.S. Co. v. Waterfront Comm. of N.Y. Harbor, 43 N.Y.2d 11 (1977), which held that a corporation could be compelled by subpoena to produce two employees (one of whom was a former employee) as witnesses at an administrative hearing. The court stated, in pertinent part:

We hold that a corporation doing business in New York may be subpoenaed to testify as a witness about a corporate transaction through its officers and employees who have knowledge of the transaction. (L 1953, ch 882, § 1, art IV, subd 8; § 1, art XI, subd 5; Southbridge Finishing Co. v Golding, 2 AD2d 430.) It is no excuse to say that the officers and employees who participated in the corporate transaction involved are not within the jurisdiction or that they refuse to appear or testify in New York. So long as the person who participated in the questioned corporate activity is an officer or employee of the corporation, or is under its control or direction, it is the corporation’s responsibility to produce that person pursuant to a subpoena served upon the corporation. As a corporation can only act through its officers and employees, a corporation is required to produce such officers and employees who have knowledge of the transaction.

Subsequently, in Coutts Bank (Switzerland) Ltd. v. Anatian., 275 A.D.2d 609 (1st Dept. 2000), the First Department held that an out-of-state defendant against whom a judgment had been entered could be compelled by subpoena served on his New York attorneys to appear for a deposition in New York to enable the plaintiff to ascertain the nature and extent of his assets. Citing Standard Fruit, the court observed that New York courts “have not been hesitant in extending the reach of a subpoena to persons outside the State if they have a presence in the State and service is effected in the State.” The court indicated that the on-going personal jurisdiction over the judgment debtor was a sufficient presence.

In Campbell v. New York City Health & Hospitals Corp., 2002 WL 34675319 (Sup. Ct., Bronx Co. 2002), Justice Douglas E. McKeon, who is highly experienced in medical malpractice actions, granted a motion brought by a plaintiff to compel a medical malpractice defense firm to accept service of a trial subpoena for an out-of-state defendant physician. Noting that the doctor had been employed at defendant NYCHHC’s hospital at the time of the alleged malpractice and that the court had personal jurisdiction over her, the court cited Standard Fruit and Coutts Bank in holding that the plaintiff could compel her presence at trial by directly serving a subpoena on her attorneys in the action.

All three of the above cases, as well as CPLR 2303-a, were cited by the court in Gyani v. Great Neck Med. Group, 35 Misc.3d 278 (Sup. Ct., Nassau Co. 2009, Diamond, J.), in holding that an out-of-state defendant doctor could be compelled to appear at trial. The plaintiffs wanted the defendant doctor on their direct case, in accordance with McDermott, and the defendants argued that they did not have to produce him because he resided outside the court’s jurisdiction. In rejecting the defendants’ argument, the court noted that the plaintiffs had the option of compelling the doctor’s appearance at trial by serving a subpoena either on the doctor’s counsel, based upon the then recently enacted CPLR 2303-a, or on the defendant hospital’s counsel, under Standard Fruit, since he was employed by the hospital at the time of the malpractice.

The Second Department recently applied the same rules in Chicoine v. Koch, 161 A.D.3d 1139 (2d Dept. 2018), in affirming the denial of a motion by an out-of-state defendant physician to quash a trial subpoena compelling his appearance at trial that was served on his attorneys. The doctor had moved out-of-state while the malpractice action was pending, and argued that he was therefore no longer subject to the court’s jurisdiction. In rejecting that argument, the court stated:

Here, the trial subpoena was properly served upon the defendant’s attorneys pursuant to CPLR 2303-a and 2103(b)(2). Contrary to the defendant’s contention, because he is a party to this action, over whom personal jurisdiction had been obtained, he is “found in the state” within the meaning of Judiciary Law §2-b (1) (see Coutts Bank [Switzerland] v Anatian, 275 AD2d 609 [2000]; cf. Zeeck v Melina Taxi Co., 177 AD2d 692, 694 [1991]; see generally Matter of Standard Fruit & S. S. Co. v Waterfront Commn. of N.Y. Harbor, 43 NY2d 11, 15 [1977]).

Without question, the combination of CPLR 2303-a and Standard Fruit and its progeny provide plaintiffs in medical malpractice actions powerful tools to compel defendant doctors to appear at trial on the plaintiff’s case in order to proceed under the rule of McDermott.

Another statutory change that assists in compelling the production of evidence at trial is a 2014 amendment to CPLR 3122-a. That statute, which has been around since 2003, addresses certification of business records. Subdivision (a) provides, in substance, that business records produced pursuant to a subpoena duces tecum shall be accompanied by a certification sworn in the form of an affidavit and subscribed by a person charged with responsibility of maintaining the records, which states that: (1) the affiant is the authorized to make the certification; (2) the records are accurate versions of the documents described in the subpoena that are in the possession, custody, or control of the person who received the subpoena; (3) the records are complete, and if they are not, the reason why; and (4) the records produced “were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.” Subdivision (b) provides, in pertinent part, that such a certification “is admissible as to the matters set forth therein and as to such matters shall be presumed true.”

Subdivision (c) provides, in substance, that a party intending to offer business records at trial under this rule “shall, at least thirty days before the trial …, give notice of such intent and specify the place where such records may be inspected at reasonable times,” and that a party upon whom such notice is served has until ten days before trial to object to the offer and state the grounds for the objection. Unless such an objection is made at trial based on evidence that could not have been discovered with due diligence more than ten days prior to trial, the certified business records certified “shall be deemed to have satisfied the requirements of subdivision (a) of rule 4518.”

Thus, CPLR 3122-a, enables litigants to admit business records in evidence by submitting a certification that establishes the requisite foundation under CPLR 4518(a). However, for the first 11 years of its existence, it applied only to business records that were produced in court pursuant to a subpoena. Therefore, out-of-state records, including records from out-of-state hospitals and doctors, could not be admitted pursuant to this rule. Cf. D’Andraia v. Pesce, 103 A.D.3d 770 (2d Dept. 2013) (defendant failed to preserve his contention that the medical records of a physician who treated the decedent in Florida “could not be certified in accordance with CPLR 3122-a, inasmuch as that statute only applied to records obtained by subpoena, and a subpoena cannot be served out of state”). This was limitation was lifted in 2014, with the addition of subdivision (d), which provides:

The certification authorized by this rule may be used as to business records produced by non-parties whether or not pursuant to a subpoena so long as the custodian or other qualified witness attests to the facts set forth in paragraphs one, two and four of subdivision (a) of this rule.

This very valuable provision enables litigants who follow the procedures required by CPLR 3122-a to admit in evidence out-of-state hospital and medical records. Before this amendment, unless all of the parties stipulated, such records could be admitted only by producing a witness at trial or at a deposition from the out-of-state entity to lay the business records foundation. This statute makes the admission of these records a lot easier.

Finally, there have been two additions to the CPLR this year that further simplify the production and admission of evidence. CPLR 2305 was amended to add subdivision (d), which permits a subpoena duces tecum for a trial to require that the documents be produced at the office of the attorney rather than to the clerk of court. That section, which became effective on Aug. 24, 2018, provides:

Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.

Litigants may continue to subpoena records to the clerk’s office, but this option provides attorneys the more convenient option of reviewing them in their office without having to go to the clerk’s office to see what has been produced.

Finally, the Legislature passed CPLR 4540-a, which creates a presumption of authenticity based on a party’s production during discovery of material that it authored or created. That section, which becomes effective Jan. 1, 2019, provides:

Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.

By this rule, when a litigant produces a document in response to a discovery demand calling for materials created by the litigant, the production itself is deemed to be an authenticating act which permits an adversary to admit the document in evidence without having to establish its authenticity. If, for some reason, the producing party disputes at trial that it in fact created the document, that party has the burden of establishing that it did not create it. This provision could have significant impact malpractice actions where physicians dispute that they wrote particular entries in medical records.

Each of the above discussed amendments to the CPLR are useful tools for admitting testimonial and documentary evidence at trial. They can avoid needless delay and expenses and should effectively streamline the litigation process, while enabling litigants to present all pertinent evidence.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.