Similarly, the Maimonedes records show no source or other basis for the several notations of
IV drug use "with neck injection." Although the observations of medical personnel may support
the admissibility of their notations (see
People v Spicola, 16 NY3d 441, 451-52 [2011] ["nurse's observations of the boy's
demeanor and manner"]; People v
Ortega, 15 NY3d 610, 617 n3 [2010] ["medical personnel's firsthand observations"];
Arroyo v City of New York, 171 AD2d 541, ___ [1st Dept 1991] ["A.O.B."/ "alcohol on
breath"]), such as a notation of the "track marks" associated with intravenous drug use, there is
no evidence that the notations in the Maimonedes records were based on the "firsthand"
observations of medical personnel. On the other hand, the attending doctor's notation that "on
physical exam pt appear intoxicated" would be admissible upon medical testimony that
intoxication is somehow relevant to the injuries Plaintiff alleges in this case.
The notation, "As per significant other pt did cocaine last night," is problematic because,
although source is indicated, it was not the patient, it was his "significant other" (characterized as
his "spouse" or "girlfriend" elsewhere in the Maimonedes records.) In Rivera v City of New
York (200 AD2d 379 [1st Dept 1994]), the First Department assumed, without deciding, that
a statement to an emergency medical services technician by "the comatose patient's niece that
plaintiff had used crack cocaine the night before" would "not qualify as a business record
exception to the hearsay rule because the declarant was under no duty to provide the information"
(see id.) But in Jajoute v New York City Health & Hosps. Corp. (242 AD2d 674
[2d Dept 1997]), the Second Department suggested that a statement made by "a person familiar