| Preldakaj v Alps Realty of NY Corp. |
| 2010 NY Slip Op 00294 [69 AD3d 455] |
| January 14, 2010 |
| Appellate Division, First Department |
| Agim Preldakaj et al., Respondents, v Alps Realty of NYCorp., Appellant, et al., Defendant. (And a Third-Party Action.) |
—[*1] Timothy A. Green, White Plains, for respondents.
Orders, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 24, 2008and August 25, 2009, which, to the extent appealed from as limited by the briefs, denieddefendant Alps Realty's motion to strike plaintiffs' note of issue and to declare certain hospitaland fire department records admissible for all purposes at trial, denied Alps' motion to renew itsprior motion, and granted plaintiffs' motion to redact the records, unanimously modified, on thelaw, to deny plaintiffs' motion, and otherwise affirmed, without costs.
The injured plaintiffs assert that they had merely stopped by an apartment to observe floorrefinishing that was being performed by their cousin, who had been hired by defendant Alps, thecorporation that owned the apartment and in which plaintiffs are shareholders and officers, whenfumes from the polyurethane that the cousin was applying to the floor ignited, causing theirinjuries (see 47 AD3d 511 [2008]). However, hospital and fire department recordsindicate that plaintiffs admitted to ambulance attendants, hospital staff, and a fire departmentofficial that they were applying the polyurethane when the fire broke out.
The motion court, after correctly finding that the admissions were not germane to thediagnosis or treatment of plaintiffs' injuries and therefore were not admissible under the businessrecords exception to the hearsay rule (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95[1999]), ruled that the records were to be redacted to omit statements that plaintiffs wereapplying the polyurethane. In addition, apparently addressing the exception to the hearsay rulefor admissions against interest in hospital records (see Coker v Bakkal Foods, Inc., 52 AD3d 765 [2008], lvdenied 11 NY3d 708 [2008]), the court ruled that the statements were unreliable, andtherefore inadmissible, in view of uncontradicted evidence about the effects of the morphine thatwas administered to plaintiffs during treatment. This was error. The evidence concerning theeffects of the morphine goes to the weight to be accorded the admissions, not their admissibility(see [*2]Gangi v Fradus., 227 NY 452, 457 [1920]).
The statements that plaintiffs were applying the polyurethane may only be admitted if thereis clear evidence connecting the party to the entry (i.e., testimony that the party made thestatement) (see Berrios v TEG Mgt.Corp., 35 AD3d 775 [2006]). If the statements are admitted at trial and it is determinedthat, contrary to plaintiffs' position, they were refinishing the floors when the fire broke out, thenit will have been shown that plaintiffs' "role[s] in the affairs of [Alps] involved ensuring theperformance of the particular corporate duty whose breach [they] allege[ ] caused [their]injur[ies]," and they will be unable to prevail in this action (see 47 AD3d at 512).
To the extent not mooted by post-motion depositions, the motion court properly denied thosebranches of Alps' motions that sought vacatur of the note of issue and commissions for furtherdepositions (see Scocozza v Tolia, 254 AD2d 475 [1998]). Concur—Gonzalez,P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ.