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June 25, 2023 3 minutes to read ∙ 700 words

Crossing the T’s and Authenticating Records

By Norina Melita

Motions for summary judgment and even default judgments can be unsuccessful for failure to comply with the business records exception to hearsay. No document sought to be admitted for the truth of the matter asserted can become part of a court’s record and thus support a motion unless appropriately authenticated by someone with personal knowledge of the facts asserted therein.

Subpoenas are often important tools for obtaining certified records that may be needed for a summary judgment. Tangentially, it is important to note that while most subpoenas can be issued without a court order—by the clerk or even an attorney for the party in an action—many practitioners fail to understand that a subpoena for records from a municipal body must be requested by motion with at least one day’s notice to the custodian of the record unless otherwise excused by the court. A court generally will refuse to sign a subpoena presented to it without proof that notice of its presentation was provided to the municipal body at least one day prior to the request being made to the court.

The issue of a certified record often comes up with regard to police reports that are attached to a motion for summary judgment. It may appear that a police report could clearly establish liability; however, if its authenticity cannot be established through an affidavit or sworn evidence, the motion for summary judgment will likely fail.

Moreover, failure to comply with the business records exception to hearsay will likely result in a denial of a motion for money damages, even where the motion is an unopposed one for default. A motion for default judgment by a creditor who fails to include an affidavit of facts authenticating the documents attached to the motion will likely fail. While CPLR § 3215 (a) authorizes a court to enter a default judgment against a party who fails to appear, such judgment can only be granted upon submission of an affidavit of facts by the party with personal knowledge of facts constituting the claim or if the complaint was verified by said party and had annexed documents identified as business records. The reasoning there is that, even on a motion for default, proof, in admissible form, must be provided to the court to determine that the cause of action is viable.

A litigator should, therefore, not be overly confident but ensure that his or her proof is properly authenticated and complies with all hearsay exceptions. A diligent litigator is usually a successful litigator.

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    Norina Melita is currently the confidential law clerk to a Supreme Court Judge in Fonda, New York. Prior to that, she was the managing attorney and vice president of legal operations at a busy litigation firm in Albany, New York. Norina also teaches business law as an adjunct professor at the College of St. Rose. You may contact Norina at [email protected].

    Published in GPSolo eReport, Volume 12, Number 11, June 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.