Admissibility of Evidence - Admissibility of Foreign Language Exhibits and Affidavits and Papers
The Civil Practice Law and Rules[1] provide that where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it must be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate. The absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible. [2]
[1] CPLR 2101 (b)
[2] In Heydt -Benjamin v Heydt-Benjamin, 127 A.D.3d 814, 6 N.Y.S.3d 582 ( 2 Dept., 2015), the Appellate Division found that the Supreme Court properly concluded that there was insufficient evidence presented to support the defendant's application for equitable distribution of the plaintiff's pension. The document which the defendant sought to admit to show the existence of a pension was written in German and not accompanied by the requisite translator's attestation (citing Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902; CPLR 2101[b]).
In Reyes v. Arco Wentworth Mgmt. Corp., 83 A.D.3d 47, 54, 919 N.Y.S.2d 44, 50 (2d Dept., 2011) the Court observed that it has held that the absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible (citing Martinez v. 123–16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201). The requirement in CPLR 2101(b) that affidavits of non-English speaking witnesses be accompanied by a translator's affidavit setting forth the translator's qualifications and the accuracy of the English version submitted to the Court makes sense.
In Martinez v. 123-16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201, 203 (2d Dept., 2008) the Appellate Division found that he translated affidavit that lacked the translator's attestation did not constitute admissible evidence.
In re Guardian of S.A.B.G., 5 N.Y.S.3d 813 (Fam. Ct., 2015) the certificate of translation stated: "I, [translator], being proficient in both the English and Spanish language, do hereby certify that the above represents a true and complete English translation from the original document written in Spanish" (Certified Translation, Registry of the Family State Republic of El Salvador Death Certificate, S.E.G.R. and Certified Translation, Registry of the Republic of El Salvador Death Certificate, J.E.B.C.). The certificate did not contain any reference to venue nor did it state that the statement was sworn to and made under the penalty of perjury. Family Court observed that CPLR 2101(b) provides that “[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." Family Court held that the statement provided by the translator that she was "proficient in both English and Spanish" was ambiguous, self-serving and insufficient to illustrate her qualifications. The translator failed to state her professional qualifications which rendered her suitable to translate the documents. In addition, the certification was not sworn to before an authorized officer
The Civil Practice Law and Rules[1] provide that where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it must be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate. The absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible. [2]
[1] CPLR 2101 (b)
[2] In Heydt -Benjamin v Heydt-Benjamin, 127 A.D.3d 814, 6 N.Y.S.3d 582 ( 2 Dept., 2015), the Appellate Division found that the Supreme Court properly concluded that there was insufficient evidence presented to support the defendant's application for equitable distribution of the plaintiff's pension. The document which the defendant sought to admit to show the existence of a pension was written in German and not accompanied by the requisite translator's attestation (citing Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902; CPLR 2101[b]).
In Reyes v. Arco Wentworth Mgmt. Corp., 83 A.D.3d 47, 54, 919 N.Y.S.2d 44, 50 (2d Dept., 2011) the Court observed that it has held that the absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible (citing Martinez v. 123–16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201). The requirement in CPLR 2101(b) that affidavits of non-English speaking witnesses be accompanied by a translator's affidavit setting forth the translator's qualifications and the accuracy of the English version submitted to the Court makes sense.
In Martinez v. 123-16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201, 203 (2d Dept., 2008) the Appellate Division found that he translated affidavit that lacked the translator's attestation did not constitute admissible evidence.
In re Guardian of S.A.B.G., 5 N.Y.S.3d 813 (Fam. Ct., 2015) the certificate of translation stated: "I, [translator], being proficient in both the English and Spanish language, do hereby certify that the above represents a true and complete English translation from the original document written in Spanish" (Certified Translation, Registry of the Family State Republic of El Salvador Death Certificate, S.E.G.R. and Certified Translation, Registry of the Republic of El Salvador Death Certificate, J.E.B.C.). The certificate did not contain any reference to venue nor did it state that the statement was sworn to and made under the penalty of perjury. Family Court observed that CPLR 2101(b) provides that “[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." Family Court held that the statement provided by the translator that she was "proficient in both English and Spanish" was ambiguous, self-serving and insufficient to illustrate her qualifications. The translator failed to state her professional qualifications which rendered her suitable to translate the documents. In addition, the certification was not sworn to before an authorized officer
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