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PLAINTIFF FAILED TO DEMONSTRATE STANDING TO SUE UNDER AN INSTALLMENT CONTRACT ALLEGEDLY ASSIGNED TO HIM; THE DOCUMENTS UPON WHICH PLAINTIFF RELIED DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should not have been granted summary judgment on an installment contract for the purchase of a car which plaintiff alleged was assigned to him. Plaintiff did not demonstrate the documents he relied on for standing fit the criteria for the business records exception to the hearsay rule:

“A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . As a general rule, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” … . “However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business” … .

Here, Dunn [plaintiff’s record manager] failed to attest to her personal knowledge of the business practices of either Baron Auto City, Inc., [the dealer which sold the car] or the entity to which Baron Auto City, Inc., allegedly assigned the installment contract. She also failed to allege that either the installment contract or the initial assignment of the installment contract to the third party were incorporated into the plaintiff’s records and routinely relied upon by the plaintiff in its business. Accordingly, under the circumstances, Dunn’s affidavit was insufficient to lay a proper foundation for either the installment contract or the initial assignment of the installment contract to the third party … . Autovest, LLC v Cassamajor, 2021 NY Slip Op 03570, Second Dept 6-9-21

 

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