AL DIRSCHBERGER v. LAWSON (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action pursuant to Social Services Law § 104 seeking to recover the overpayment of Medicaid benefits to defendant. Following a nonjury trial, Supreme Court granted judgment to plaintiff in the amount of $22,354.59, plus interest. We affirm.

Defendant's contention that the court erred in admitting in evidence plaintiff's exhibit 5, a summary of the amounts of Medicaid benefits that were overpaid to defendant, on the ground that it was a document prepared in anticipation of litigation, is not preserved for our review (see Cooper v. Nestoros, 159 A.D.3d 1365, 1367, 72 N.Y.S.3d 666 [4th Dept. 2018]; Davis v. Vallie, 93 A.D.3d 1232, 1232, 940 N.Y.S.2d 430 [4th Dept. 2012]; see also Flynn v. Manhattan & Bronx Surface Tr. Operating Auth., 61 N.Y.2d 769, 771, 473 N.Y.S.2d 154, 461 N.E.2d 291 [1984]). In any event, we agree with plaintiff that the court properly admitted that exhibit in evidence as a business record (see CPLR 4518 [a]; Board of Mgrs. of Ruppert Yorkville Towers Condominium v. Hayden, 169 A.D.3d 569, 570, 94 N.Y.S.3d 59 [1st Dept. 2019]).

Defendant contends that, pursuant to CPLR 2305 (d), plaintiff should have provided him with copies of bank statements that plaintiff obtained by subpoena. Defendant has failed to include any subpoenas in the record on appeal, however, and we are thus unable to determine whether plaintiff failed to comply with CPLR 2305 (d) (see Allington v. Templeton Found., 167 A.D.3d 1437, 1440, 90 N.Y.S.3d 735 [4th Dept. 2018]; Montanaro v. Weichert, 164 A.D.3d 1611, 1612, 84 N.Y.S.3d 628 [4th Dept. 2018]). Defendant contends that the court erred in admitting in evidence plaintiff's exhibit 9, a review summary of the aforementioned bank statements. That contention is not preserved for our review because, although defendant's attorney initially objected to the use of plaintiff's exhibit 9 during direct examination of one of plaintiff's witnesses, defendant's attorney subsequently stated that he had no objection to the exhibit being admitted in evidence (see Matter of Clark v. Hawkins, 140 A.D.3d 1753, 1754, 33 N.Y.S.3d 646 [4th Dept. 2016]). In any event, the information in plaintiff's exhibit 9 was also contained in plaintiff's exhibit 6, and defendant's attorney had no objection to plaintiff's exhibit 6 being admitted in evidence. We therefore conclude that any error in admitting plaintiff's exhibit 9 in evidence is harmless (see Palmer v. Wright & Kremers, 62 A.D.2d 1170, 1171, 404 N.Y.S.2d 471 [4th Dept. 1978]; see generally Rizzuto v. Getty Petroleum Corp., 289 A.D.2d 217, 217-218, 736 N.Y.S.2d 233 [4th Dept. 2001]).

We have considered defendant's remaining contention and conclude that it does not require reversal or modification of the judgment.