Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Not Necessary to Lay Foundation For Admission of Certified Non-Party Business Records Produced Pursuant to Subpoena - CPLR 3122-a.
CPLR 3122-a[1] dispenses with the necessity of laying a foundation at a trial or hearing for the introduction into evidence of non-party business records produced in accordance with CPLR 3120. It provides that if the records are properly certified by the custodian they have satisfied the requirements of CPLR 4518 (a).[2]
Business records produced pursuant to a subpoena duces tecum served in accordance with CPLR 3120 must be accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other qualified witness charged with responsibility for maintaining the records.[3]
The certification must state in substance each of the following:
1. The affiant is the duly authorized custodian or other qualified witness and has authority to make the certification;
2. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum that are in the possession, custody, or control of the person receiving the subpoena;
3. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum, or if they do not represent a complete set of the documents subpoenaed, an explanation of which documents are missing and a reason for their absence is provided; and
4. The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.[4]
A party who intends to offer into evidence at a trial or hearing business records authenticated by this certification must give notice of his intent to do so and specify the place where such records may be inspected at reasonable times, at least thirty days before the trial or hearing. No later than ten days before the trial or hearing, the party upon whom the notice is served may object to the offer of business records by certification stating the grounds for the objection. The objection may be asserted in any instance and may not be subject to the imposition of a penalty or sanction by the court. Unless this objection is made or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the required time for objection, the business records certified in accordance with the rule are deemed to have satisfied the requirements of CPLR 4518 (a).[5]
Notwithstanding the issuance of the notice or an objection to the notice, a party may still subpoena the custodian to appear and testify and require the production of original business records at the trial or hearing. [6]
A certification made in compliance with CPLR 3122-a is admissible as to the matters set forth therein and as to such matters is presumed true. When more than one person has knowledge of the facts, more than one certification may be made.[7]
[1] Added by Laws of 2002, Ch. 575, § 4, effective Sept. 1, 2003.
[2] CPLR 4518(a) provides: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section one hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.
[3] CPLR 3122-a (a).
[4] CPLR 3122-a (a).
[5] CPLR 3122-a (c).
[6] CPLR 3122-a (c)
[7] CPLR 3122-a (b).
CPLR 3122-a[1] dispenses with the necessity of laying a foundation at a trial or hearing for the introduction into evidence of non-party business records produced in accordance with CPLR 3120. It provides that if the records are properly certified by the custodian they have satisfied the requirements of CPLR 4518 (a).[2]
Business records produced pursuant to a subpoena duces tecum served in accordance with CPLR 3120 must be accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other qualified witness charged with responsibility for maintaining the records.[3]
The certification must state in substance each of the following:
1. The affiant is the duly authorized custodian or other qualified witness and has authority to make the certification;
2. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum that are in the possession, custody, or control of the person receiving the subpoena;
3. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum, or if they do not represent a complete set of the documents subpoenaed, an explanation of which documents are missing and a reason for their absence is provided; and
4. The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.[4]
A party who intends to offer into evidence at a trial or hearing business records authenticated by this certification must give notice of his intent to do so and specify the place where such records may be inspected at reasonable times, at least thirty days before the trial or hearing. No later than ten days before the trial or hearing, the party upon whom the notice is served may object to the offer of business records by certification stating the grounds for the objection. The objection may be asserted in any instance and may not be subject to the imposition of a penalty or sanction by the court. Unless this objection is made or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the required time for objection, the business records certified in accordance with the rule are deemed to have satisfied the requirements of CPLR 4518 (a).[5]
Notwithstanding the issuance of the notice or an objection to the notice, a party may still subpoena the custodian to appear and testify and require the production of original business records at the trial or hearing. [6]
A certification made in compliance with CPLR 3122-a is admissible as to the matters set forth therein and as to such matters is presumed true. When more than one person has knowledge of the facts, more than one certification may be made.[7]
[1] Added by Laws of 2002, Ch. 575, § 4, effective Sept. 1, 2003.
[2] CPLR 4518(a) provides: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section one hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.
[3] CPLR 3122-a (a).
[4] CPLR 3122-a (a).
[5] CPLR 3122-a (c).
[6] CPLR 3122-a (c)
[7] CPLR 3122-a (b).
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.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
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.
|