Manufacturers and Traders Trust Company, Plaintiff–Respondent, v. WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK (2020)

Judgment, Supreme Court, Bronx County (Francis A. Kahn, III, J.), entered December 19, 2018, after a nonjury trial, in favor of plaintiff Manufacturers and Traders Trust Company and against defendant William Penn Life Insurance Company of New York, unanimously affirmed, with costs.

The trial court properly excluded as double hearsay a written report including a statement by the decedent's wife. The statement is not admissible as a business record, because the decedent's wife was under no duty to make the statement (Matter of Imani O. [Marcus O.], 91 A.D.3d 466, 467, 937 N.Y.S.2d 162 [1st Dept. 2012]). Nor is the statement admissible as an excited utterance, because, among other things, it was not made contemporaneously with, or immediately following, a startling event (People v. Cummings, 31 N.Y.3d 204, 209, 75 N.Y.S.3d 484, 99 N.E.3d 877 [2018]).

The court properly rejected the opinion of defendant's expert as unreliable, because defendant failed to show that the hearsay evidence that formed the basis of the opinion was the type of material commonly relied on in the medical profession (see Matter of State of New York v. Mark S., 87 A.D.3d 73, 77, 924 N.Y.S.2d 661 [3d Dept. 2011], lv denied 17 N.Y.3d 714, 2011 WL 4977120 [2011]).

The insurance investigator's report on his second interview with the decedent's wife, which, in a break with his custom, the investigator did not ask the decedent's wife to sign, is not admissible as a “past recollection recorded,” because it lacks the requisite trustworthiness (see People v. DiTommaso, 127 A.D.3d 11, 15–16, 2 N.Y.S.3d 494 [1st Dept. 2015], lv denied 25 N.Y.3d 1162, 15 N.Y.S.3d 294, 36 N.E.3d 97 [2015]; Iannielli v. Consolidated Edison Co., 75 A.D.2d 223, 428 N.Y.S.2d 473 [2d Dept. 1980]). Nor is the report admissible as a business record, because it was not prepared pursuant to the investigator's standard procedure (see People v. Kennedy, 68 N.Y.2d 569, 579–580, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986]; CPLR 4518[a]).

We have considered defendant's remaining arguments and find them unavailing.