KOI Med. Acupuncture v State Farm Ins. Co., 2007 NY Slip Op 51705(U), here are the relevant parts:
While the Defendant is correct in asserting that its attempts to submit the transcripts of the examinations under oath are not barred by the hearsay rule,
because the Defendant is not offering the statements contained therein for their
truth, Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999); Nucci v. Proper,
95 NY2d 597, 721 NYS2d 593 (2001); Winant v. Carras, 208 AD2d 618, 617 NYS2d 487 (2nd Dept. 1994) lv. den. 85 NY2d 812, 631 NYS2d 288 (1995) [*4]but for the
exact opposite reason, to show their falsity and fraud, Stern v. Waldbaum, Inc., 234 AD2d 534, 651 NYS2d 187 (2nd Dept. 1996); DeLuca v. Ricci, 194 AD2d 457, 599 NYS2d 267 (1st Dept. 1993); Dawson v. Raimon Realty Corporation, 303 AD2d 708,
758 NYS2d 100 (2nd Dept. 2003), the transcripts, nevertheless, are not properly
before this court. These transcripts are neither signed nor verified, Krupp v. Aetna Life & Casualty Co., 103 AD2d 252, 479 NYS2d 992 (2nd Dept.1984); Tancos v. Centaur Insurance Company, 133 AD2d 622, 519 NYS2d 730 (2nd Dept.1987); and, the Defendant offers no explanation as to why. McDonald v. Mauss, 38 AD3d 727, 832 NYS2d 291 (2nd Dept. 2007) Additionally, the Plaintiff has not demonstrated any formal requirements for the taking of these individuals’ alleged testimony sufficient to assure their accuracy. Complete Orthopedic Supplies, Inc. v. State Farm Insurance Company, __ Misc 3d __, 838 NYS2d 861 (Civ.Ct. Queens Co. 2007) Notably absent from the transcripts submitted are certifications as to the transcripts’ accuracy, executed by the Notary Public who purportedly took the testimony. cf. Morchik v. Trinity School, 257 AD2d 534, 684 NYS2d 534 (1st Dept.1999); Cox v. Jeffers, 222 AD2d 395, 634 NYS2d 519 (2nd Dept. 1995) Without such certification, the Plaintiff is asking the court to rely on transcripts which may be inaccurate. Jacobs v. Herrera, 4 Misc 3d 1018(A), 798 NYS2d 345 (Dist.Ct. Nassau Co. 2004)Having failed to establish that the insurance policy herein contained an endorsement authorizing examinations under oath, the Plaintiff’s assignor’s alleged failure to appear for such an examination cannot serve as grounds for the denial of Plaintiff’s claim. A.B. Medical Services PLLC v. Allstate Insurance Company, 11 Misc 3d 135(A), 816 NYS2d 693 (App. Term 2nd & 11th Jud. Dists. 2006); Star Medical Services P.C. v. Eagle Insurance Company, 6 Misc 3d 56, 791 NYS2d 266 (App. Term 2nd & 11th Jud. Dists. 2004)
Additionally, like “independent” medical examinations, to successfully deny a claim based upon the Plaintiff’s assignor’s failure to attend an examination under oath, the insurer must establish, inter alia, proper mailing of the request for the examination by someone with knowledge. Stephen Fogel Psychological, P.C. v. Progressive Casualty Insurance Company, 35 AD3d 720, 827 NYS2d 217 (2nd Dept. 2006); Radiology Today, P.C. v. Citiwide Auto Leasing Inc., 15 Misc 3d 92, 838 NYS2d 336 (App. Term 2nd & 11th Jud. Dists. 2007) Neither Defendant’s counsel nor Mr. Hermann, the Defendant’s investigator, indicate that they have any personal knowledge of the alleged mailing of two notices for an examination under oath to the Plaintiff’s assignor; nor do they describe a “standard office practice or procedure designed to ensure that items are properly addressed and mailed” which would give rise to a presumption of receipt by the Plaintiff’s assignor. Residential Holding Corp. v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001) That these notices [*6]were allegedly mailed by certified mail, return receipt requested, does not cure the deficiencies in the Defendant’s proof, as there is no proof that these notices were, in fact, mailed in such fashion. Nowhere on the letters is the mailing receipt number indicated; and, the purported mailing receipt fails to indicate what item was mailed and the address to which it was allegedly sent. Similarly, the mailing receipt does not contain a postmark or any other marking from the United States Postal Service. Moreover, although not submitted with the letters, both defense counsel and Mr. Hermann indicate that return receipt postcards were not signed by the Plaintiff’s assignor, but “by an unknown individual ….” (Hermann Affidavit 5/1/07, ¶ 6 and Linwood Affirmation, 4/19/07, ¶ 9) See: New York and Presbyterian Hospital v. Allstate Insurance Company, 29 AD3d 547, 814 NYS2d 687 (2nd Dept. 2006); Compare: Westchester Medical Center v. Liberty Mutual Insurance Company, 40 AD3d 981, 837 NYS2d 210 (2nd Dept. 2007) [the certified receipts contained a postmark and the documents' identification numbers; and, the return receipt card, bearing the same information, was signed by a representative of the recipient]