You are here: / / A PROPER FOUNDATION WAS NOT LAID FOR THE BUSINESS RECORDS RELIED UPON BY...
, ,

A PROPER FOUNDATION WAS NOT LAID FOR THE BUSINESS RECORDS RELIED UPON BY THE PLAINTIFF; THEREFORE THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE WERE NOT MET AND PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the business records relied upon by plaintiff in this breach of contract action were not supported by a sufficient foundation. Therefore, under the criteria for the business records exception to the hearsay rule, the documents were inadmissible hearsay and could not support plaintiff’s summary judgment motion:

“‘Records made in the regular course of business are hearsay when offered for the truth of their contents'” … . “When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, ‘[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'” … .

In support of its motion for summary judgment on the complaint, the plaintiff submitted an affidavit of Denine Chevillot Knowles, its vice president. Though Knowles attested that she had “personal knowledge of the relevant business practices of Plaintiff,” she did not attest that the records submitted in support of the motion were “made in the regular course of business” and were “needed and relied on in the performance of functions of the business,” that it was “the regular course of such business to make the record[s],” or that the records were “made at or about the time of the event being recorded” … . Thus, Knowles failed to lay a proper foundation for the admission of any records concerning the defendants’ payment history and default … . Accordingly, the plaintiff failed to demonstrate that the records relied upon in the affidavit were admissible under the business records exception to the hearsay rule. HSBC Bank USA, N.A. v Vasishta, 2025 NY Slip Op 04885, Second Dept 9-10-25

Practice Point: Business records are hearsay. To be admissible the criteria for the business records exception to the hearsay rule must be met. Consult this decision for the foundation requirements for the admissibility of business records.​

 

You might also like
BECAUSE PETITIONER HAD SUBSTANTIALLY PREVAILED ON THE FOIL CAUSE OF ACTION, PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS, DESPITE THE FACT THAT MUCH OF THE LEGAL REPRESENTATION WAS BY PRO BONO COUNSEL (SECOND DEPT).
No Fiduciary Duty Re: Purchase of One Shareholder’s Stock by Another in a Close Corporation
DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT).
STATEMENTS THAT PLAINTIFF’S DECEDENT SIGNED AN “AGAINST MEDICAL ADVICE” FORM BEFORE REFUSING TREATMENT WHICH WERE INCLUDED IN MEDICAL RECORDS AND IN THE DEPOSITIONS OF THE DOCTORS IN THIS MEDICAL MALPRACTICE ACTION WERE NOT ADMISSIBLE AS BUSINESS RECORDS, AS ADMISSIONS, AS DECLARATIONS AGAINST INTEREST, OR PURSUANT TO THE DEAD MAN’S STATUTE; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).
ALTHOUGH THE BREACH OF CONTRACT CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE THE CONTRACT WAS NOT AMBIGUOUS AND PAROL EVIDENCE THEREFORE WAS NOT ADMISSIBLE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION, FOR WHICH PAROL EVIDENCE IS ADMISSIBLE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
ON APPEAL DEFENDANT CHALLENGED THE VOLUNTARINESS OF HIS GUILTY PLEA BUT THE PLEA MINUTES WERE NOT AVAILABLE; DEFENDANT DID NOT SHOW THAT RECONSTRUCTION OF THE 2013 PLEA PROCEEDING WAS IMPOSSIBLE; THEREFORE THE MATTER WAS REMITTED FOR A RECONSTRUCTION HEARING (SECOND DEPT),
MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT).
DEFENDANT’S UNTIMELY ANSWER WAS REJECTED BY PLAINTIFF BUT PLAINTIFF DEEMED THE ANSWER TO BE A NOTICE OF APPEARANCE; DEFENDANT DID NOT OBJECT; AN APPEARANCE IS THE EQUIVALENT OF SERVICE OF A SUMMONS; THEREFORE DEFENDANT WAIVED THE LACK-OF-PERSONAL-JURISDICTION DEFENSE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM,... THE PROVISION OF THE CORRECTION LAW WHICH REQUIRES AN OUT-OF-STATE SEX OFFENDER...