
Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records Rule - Business Duty
• CPLR 4518(a) does not require that the person supplying the information must be under a business duty to do so. But such a requirement was read into the statute by the Court of Appeals in Johnson v. Lutz.[1]
•Johnson v. Lutz [2] has been subsequently disregarded in certain instances and the rule is that if the informant was under a business duty to perceive the event and to transmit information concerning it to an entrant who was under a business duty to record it, the entry is admissible for its truth under CPLR 4518. The fact that the entry was self-serving does not bar its admission.[3]
• If the informant was not under a business duty to impart the information, but the entrant was under a business duty to obtain and record the statement, the entry is admissible under CPLR 4518 to establish merely that the statement was made. Entries which are not made in the regular course of a business are not admissible under the statute. [4]
[1] 253 N.Y. 124.
[2] 253 N.Y. 124.
[3] Bishin v. N.Y. Central R.R. Co. 20 App. Div.2d 921, 249 N.Y.S.2d 778.
[4] Shea v. McKeon, 264 App. Div. 573, 35 N.Y.S.2d 962 (entry in the stub of a check book not admissible to show a loan, where entry was merely a private memorandum).
• CPLR 4518(a) does not require that the person supplying the information must be under a business duty to do so. But such a requirement was read into the statute by the Court of Appeals in Johnson v. Lutz.[1]
•Johnson v. Lutz [2] has been subsequently disregarded in certain instances and the rule is that if the informant was under a business duty to perceive the event and to transmit information concerning it to an entrant who was under a business duty to record it, the entry is admissible for its truth under CPLR 4518. The fact that the entry was self-serving does not bar its admission.[3]
• If the informant was not under a business duty to impart the information, but the entrant was under a business duty to obtain and record the statement, the entry is admissible under CPLR 4518 to establish merely that the statement was made. Entries which are not made in the regular course of a business are not admissible under the statute. [4]
[1] 253 N.Y. 124.
[2] 253 N.Y. 124.
[3] Bishin v. N.Y. Central R.R. Co. 20 App. Div.2d 921, 249 N.Y.S.2d 778.
[4] Shea v. McKeon, 264 App. Div. 573, 35 N.Y.S.2d 962 (entry in the stub of a check book not admissible to show a loan, where entry was merely a private memorandum).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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