The Appellate Division, Second Department, has held in its June 15, 2016 decision in Schiero v. Perrotta, that a mother’s testimony was a sufficient foundation for the admission in evidence of her children’s medical bills and her proof of payment of those bills.
The mother had filed a violation petition alleging that the father had failed to pay his pro rata share of the children’s unreimbursed medical expenses. At the ensuing hearing, the mother testified that she had incurred $980 in medical expenses for the children. She attempted to offer into evidence copies of medical bills and proof of payment.
Support Magistrate Rachelle C. Kaufman, however, refused to admit the medical invoices into evidence on the ground that the medical invoices were hearsay, and were not admissible through the mother’s testimony. Magistrate Kaufman then held that the mother failed to demonstrate the amounts of each individual medical expense, or when they were incurred. The Magistrate dismissed that branch of her petition. The mother filed objections, which were denied by Rockland County Family Court Judge Sherri L. Eisenpress.
The Second Department reversed, holding that the Support Magistrate improperly precluded the mother from introducing evidence to support that branch of her petition which sought payment from the father for his pro rata share of the children’s unreimbursed medical expenses.
Contrary to the Support Magistrate’s determination, the mother’s testimony provided a sufficient foundation for the admission of the medical bills and her proof of payment of those bills, as she had personal knowledge of their contents. Consequently, the mother should have been permitted to meet her initial burden of presenting prima facie evidence of the father’s nonpayment through the submission of the medical bills and her sworn testimony.
Generally, hearsay (an out-of-court statement offered to prove the truth of whatever it asserts) is not admissible in court proceedings. However, there are numerous exceptions. One of those are for business records. An invoice would be such a business record, being prepared by a provider of goods sold or services provided, and itemizing what has been provided and noting the charge and terms. Generally, the business record exception codified in C.P.L.R. §4518(a) allows the record in evidence if it can be established that it was created and maintained in the ordinary course of the business that provided the goods or services and was created at or about the time the goods or services were provided. Generally, that evidentiary foundation must be provided by a representative of the business that created the record.
Usually, the business record exception is not satisfied by the recipient of someone else’s business record simply stating I received it and know what it says.
However, the Second Department tells us in Schiero, and the cases it cites in that decision, that the court system needs the rule to be different in this context. The foundation for the invoice’s receipt into evidence, documenting the fact of the children’s health care service were, in fact, provided and the invoiced charges were, in fact, incurred, may be provided by the parent testifying:
- I took my child to the doctor.
- The doctor provided the stated service.
- I was charged the amount shown on the invoice.
- I paid it.
(Of course, proof of payment is usually demonstrated by another hearsay business record, i.e., the credit card or bank statement.)
Such testimony is enough. If the service or payment is disputed, it will be up to the parent resisting paying his or her pro rata share to prove that the service was not rendered, or that the amount was wrong, or that it was not paid.
In what other contexts will personal knowledge of the out-of-court statement be all that is necessary to overcome the hearsay exclusion rule?