Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for and Questions for Offering Business Records into Evidence
In order to lay a foundation for the admission into evidence of business records the following four foundational elements must be demonstrated:
(1) The document must be a memorandum or record "made in the regular course of any business”.
(2) It must be the regular course of the business to make the record.[1]
(3) The record must have been made at the time of the act or occurrence recorded or within a reasonable time thereafter.
(4) The person who made the record must have had actual knowledge of the event recorded or must have received his or her information from someone within the business who had actual knowledge and was under a “business duty" to report the event to the maker of the record.[2]
The foundation is usually accomplished by someone from within the business, such as a records custodian or other employee, who can testify to the nature of the record-keeping practices of the business.[3] The witness need not be familiar with the facts contained in the record. It is sufficient that the witness knows the habits and customary practices and procedures for the making of such records. If a knowledgeable witness can be produced, it is not necessary to call the actual author of the record. [4]
Example of foundation testimony:
(By Counsel)
Q. Do you have a true copy of the record with you?
(If yes)
(By Counsel)
Your Honor, may we have the document marked for identification?
[Wait while the court reporter marks the document]
[Show the marked document to the witness]
Q. Can you identify the document which is marked as Exhibit __ for identification?
Q. What is it?
Q. Is it a business record of ___________?
Q. Is that record made in the ordinary course of business of _________?
Q. Is it part of the regular course of business of ____ to make such records?
Q. Was it made at the time of the act, transaction, occurrence or event recorded in the record, or within a reasonable time thereafter?
Q. Did the person who made the record have actual knowledge of the event recorded? or
Q. Did the person who made the record receive his or her information from someone within the business who had actual knowledge of the act, transaction, occurrence or event, and was under a “business duty" to report the act, transaction, occurrence or event to the maker of the record?
Statutory provisions for certification may dispense with the need for foundation testimony under certain circumstances and the foundation requirements of CPLR 4518(a) need not be demonstrated if a person's business records qualify for admissibility under a different hearsay exception such as the business records of an adverse party, if authenticated, which can be admitted against that party under the exception for admissions. [5]
[1] In Devon S v Aundrea B-S, 32 Misc. 3d 341, 924 N.Y.S.2d 233 (Fam. Ct., 2011) Family Court held that Elementary School records which were received from other entities and were placed in the students file were inadmissible hearsay. Before records may be admitted as "business-records" pursuant to CPLR 4518(a), the proponent must establish that the record be made in the regular course of business and it is the regular course of the business to make such records. The mere filing of papers received from other entities, even if they are retained in the regular course of business of the recipient is insufficient to qualify the documents as business records because such papers are not made in the regular course of business of the recipient, who is no position to provide the necessary foundation testimony. In addition, children’s report cards and teacher comments are not admissible. The business-record exception permits the admission of a written memorandum or record of "any act, transaction, occurrence or event" made relatively contemporaneously with the recorded incident. While recording teacher grades and comments may be part of the business of a school, the grades and comments themselves are hearsay and do not constitute an "act, transaction, occurrence, or event”. Rather, they are expressions of the subjective judgments of the teacher who determines or authors them, formulated over a period of time and based on any number of factors, which can only be admitted and tested through live testimony.
[2] See Johnson v. Lutz, 1930, 253 N.Y. 124, 170 N.E. 517.
In Chu Man Woo v. Qiong Yun Xi, 106 A.D.3d 818, 964 N.Y.S.2d 647 (2d Dept., 2013) the Appellate Division held that Family Court erred in considering various police reports related to the alleged family offenses in making its determination. Police reports are admissible as business records as long as the report is made based upon the officer's personal observations and while carrying out the officer's police duties. Police reports have consistently been held inadmissible where the information contained in the report came from witnesses not engaged in the police business in the course of which the memorandum was made. As there was no evidence as to the source of the information in the reports, whether that person was under a business duty to make it, or whether some other hearsay exception would render the statements admissible, they should not have been considered by the Family Court.
[3] See Vermont Commissioner of Banking & Insurance v. Welbilt Corp., 1987, 133 A.D.2d 396, 519 N.Y.S.2d 390 (2d Dep't), appeal dismissed, 1988, 70 N.Y.2d 1002, 526 N.Y.S.2d 438, 521 N.E.2d 445; McClure v. Baier's Automotive Service Center, Inc., 1987, 126 A.D.2d 610, 511 N.Y.S.2d 50 (2d Dep't).
[4] Napolitano v. Banks, 1988, 141 A.D.2d 705, 529 N.Y.S.2d 824 (2d Dep't).
[5] See Lichtenstein v. Montefiore Hosp., 1977, 56 A.D.2d 281, 286, 392 N.Y.S.2d 18, 22 (1st Dep't).
In order to lay a foundation for the admission into evidence of business records the following four foundational elements must be demonstrated:
(1) The document must be a memorandum or record "made in the regular course of any business”.
(2) It must be the regular course of the business to make the record.[1]
(3) The record must have been made at the time of the act or occurrence recorded or within a reasonable time thereafter.
(4) The person who made the record must have had actual knowledge of the event recorded or must have received his or her information from someone within the business who had actual knowledge and was under a “business duty" to report the event to the maker of the record.[2]
The foundation is usually accomplished by someone from within the business, such as a records custodian or other employee, who can testify to the nature of the record-keeping practices of the business.[3] The witness need not be familiar with the facts contained in the record. It is sufficient that the witness knows the habits and customary practices and procedures for the making of such records. If a knowledgeable witness can be produced, it is not necessary to call the actual author of the record. [4]
Example of foundation testimony:
(By Counsel)
Q. Do you have a true copy of the record with you?
(If yes)
(By Counsel)
Your Honor, may we have the document marked for identification?
[Wait while the court reporter marks the document]
[Show the marked document to the witness]
Q. Can you identify the document which is marked as Exhibit __ for identification?
Q. What is it?
Q. Is it a business record of ___________?
Q. Is that record made in the ordinary course of business of _________?
Q. Is it part of the regular course of business of ____ to make such records?
Q. Was it made at the time of the act, transaction, occurrence or event recorded in the record, or within a reasonable time thereafter?
Q. Did the person who made the record have actual knowledge of the event recorded? or
Q. Did the person who made the record receive his or her information from someone within the business who had actual knowledge of the act, transaction, occurrence or event, and was under a “business duty" to report the act, transaction, occurrence or event to the maker of the record?
Statutory provisions for certification may dispense with the need for foundation testimony under certain circumstances and the foundation requirements of CPLR 4518(a) need not be demonstrated if a person's business records qualify for admissibility under a different hearsay exception such as the business records of an adverse party, if authenticated, which can be admitted against that party under the exception for admissions. [5]
[1] In Devon S v Aundrea B-S, 32 Misc. 3d 341, 924 N.Y.S.2d 233 (Fam. Ct., 2011) Family Court held that Elementary School records which were received from other entities and were placed in the students file were inadmissible hearsay. Before records may be admitted as "business-records" pursuant to CPLR 4518(a), the proponent must establish that the record be made in the regular course of business and it is the regular course of the business to make such records. The mere filing of papers received from other entities, even if they are retained in the regular course of business of the recipient is insufficient to qualify the documents as business records because such papers are not made in the regular course of business of the recipient, who is no position to provide the necessary foundation testimony. In addition, children’s report cards and teacher comments are not admissible. The business-record exception permits the admission of a written memorandum or record of "any act, transaction, occurrence or event" made relatively contemporaneously with the recorded incident. While recording teacher grades and comments may be part of the business of a school, the grades and comments themselves are hearsay and do not constitute an "act, transaction, occurrence, or event”. Rather, they are expressions of the subjective judgments of the teacher who determines or authors them, formulated over a period of time and based on any number of factors, which can only be admitted and tested through live testimony.
[2] See Johnson v. Lutz, 1930, 253 N.Y. 124, 170 N.E. 517.
In Chu Man Woo v. Qiong Yun Xi, 106 A.D.3d 818, 964 N.Y.S.2d 647 (2d Dept., 2013) the Appellate Division held that Family Court erred in considering various police reports related to the alleged family offenses in making its determination. Police reports are admissible as business records as long as the report is made based upon the officer's personal observations and while carrying out the officer's police duties. Police reports have consistently been held inadmissible where the information contained in the report came from witnesses not engaged in the police business in the course of which the memorandum was made. As there was no evidence as to the source of the information in the reports, whether that person was under a business duty to make it, or whether some other hearsay exception would render the statements admissible, they should not have been considered by the Family Court.
[3] See Vermont Commissioner of Banking & Insurance v. Welbilt Corp., 1987, 133 A.D.2d 396, 519 N.Y.S.2d 390 (2d Dep't), appeal dismissed, 1988, 70 N.Y.2d 1002, 526 N.Y.S.2d 438, 521 N.E.2d 445; McClure v. Baier's Automotive Service Center, Inc., 1987, 126 A.D.2d 610, 511 N.Y.S.2d 50 (2d Dep't).
[4] Napolitano v. Banks, 1988, 141 A.D.2d 705, 529 N.Y.S.2d 824 (2d Dep't).
[5] See Lichtenstein v. Montefiore Hosp., 1977, 56 A.D.2d 281, 286, 392 N.Y.S.2d 18, 22 (1st Dep't).
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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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