The Court offers some guidance as to the business records exception

Last reviewed: September 2026.

Understanding the Business Records Exception: Essential Guidance for Long Island and New York City Practitioners

In the complex world of New York litigation, the admission of business records represents one of the most frequently encountered evidentiary challenges facing attorneys in Long Island and New York City courts. Whether you’re handling personal injury cases, commercial disputes, or medical malpractice claims, understanding the nuances of the business records exception under CPLR 4518 can make the difference between successfully proving your case and watching crucial evidence get excluded.

At the Law Office of Jason Tenenbaum, we regularly encounter situations where the proper foundation for business records becomes the pivotal issue in cases throughout Nassau County, Suffolk County, and the five boroughs of New York City. The stakes are particularly high in personal injury and medical malpractice cases, where medical records, billing statements, and treatment documentation often form the backbone of both liability and damages claims.

The Critical Importance of Business Records in New York Litigation

Business records serve as the foundation for countless legal arguments across all areas of practice. In personal injury cases, medical records establish the extent of injuries and treatment. In commercial litigation, corporate documents prove business relationships and financial transactions. In employment law, personnel files and payroll records demonstrate wage violations or discriminatory practices.

However, the mere existence of these documents doesn’t guarantee their admissibility in court. New York’s evidence rules require that business records meet specific foundational requirements before they can be considered by a judge or jury. Understanding these requirements and how courts apply them in practice is essential for any attorney practicing in the New York metropolitan area.

CPLR 4518: The Business Records Exception Framework

CPLR 4518 provides the statutory framework for admitting business records in New York courts. This provision creates an exception to the hearsay rule, allowing certain business records to be admitted into evidence even though they might otherwise be considered inadmissible hearsay. However, the exception comes with specific requirements that must be satisfied.

CPLR 4518(a) requires regular-course creation, a regular business practice of making the record, and creation at the recorded event or within a reasonable time afterward. The source of the information matters as well. Identify an appropriate evidentiary route for the proceeding, such as knowledgeable testimony or an applicable statutory certification procedure; an ordinary affidavit is not automatically a trial substitute.

Court Guidance: Lessons from V.S. Med. Servs., P.C. v Travelers Ins. Co.

The importance of proper foundation for business records is clearly illustrated in a case highlighted by attorney Jason Tenenbaum’s analysis:

V.S. Med. Servs., P.C. v Travelers Ins. Co. 2009 NY Slip Op 50048(U) (App. Term 2d Dept. 2009)

Plaintiff offered the testimony of its former employee and sought the admission of, inter alia, its purported claim forms into evidence. Defendant objected on the ground that said documents were hearsay and that plaintiff failed to lay a foundation for their admission pursuant to CPLR 4518.

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records

This case provides crucial guidance for practitioners: it’s not sufficient to simply produce a witness who is familiar with business records. The witness must be able to testify about how the records were actually created, maintained, and used in the regular course of business.

Common Foundation Problems in Long Island and NYC Practice

Insufficient Witness Knowledge

As demonstrated in the V.S. Med. Servs. case, one of the most common problems in establishing business records foundation is producing witnesses who lack sufficient knowledge about how the records were created. This is particularly problematic in medical malpractice and personal injury cases where medical records may be old, or the personnel who created them are no longer available.

Missing Chain of Custody

When records pass between businesses, explain their source and the receiving business’s relevant use and reliance. An authenticity dispute may require additional proof. The opinion does not prescribe a universal physical chain-of-custody log for every business record.

Inadequate Authentication

Courts require clear evidence that business records are what they purport to be. This means establishing not only who created the records but also the systems and procedures used to maintain their accuracy and reliability.

Strategic Applications Across Practice Areas

Personal Injury Cases

In personal injury litigation throughout Long Island and New York City, medical records form the foundation of damages claims. A knowledgeable custodian may explain the relevant record practices. An applicable certification procedure may supply another route. Identify the foundation available for the particular record and proceeding.

Key considerations include establishing that records were made contemporaneously with treatment, that healthcare providers had personal knowledge of the information recorded, and that the records were kept in the regular course of business according to standard medical practice.

Commercial Litigation

Business disputes often involve financial records, contracts, correspondence, and other corporate documents. Foundation requirements include establishing the company’s record-keeping procedures, demonstrating that documents were created and maintained in the regular course of business, and showing that the witness has sufficient knowledge of the company’s operations.

Employment Law

Employment litigation frequently involves personnel files, payroll records, and company policies. A witness may explain the relevant employment-record practices, including regular-course creation and timing. Assess any available certification route separately; the existence of a personnel file does not prove every assertion in it.

Medical Malpractice

Medical malpractice cases present unique challenges for business records foundation, particularly when dealing with multiple healthcare providers, electronic medical records systems, and complex treatment histories. Practitioners must be prepared to address issues related to record completeness, contemporaneous creation, and the qualifications of witness testimony.

Best Practices for Establishing Business Records Foundation

Identify the Right Witness

The most critical step in establishing business records foundation is identifying a witness who has sufficient knowledge about how the records were created and maintained. This person should understand the business’s record-keeping procedures and be able to explain how the specific documents at issue fit within those procedures.

Prepare Comprehensive Testimony

Witnesses should be prepared to testify about the complete process of record creation, including who creates records, when they’re created, what information they contain, how accuracy is ensured, and how records are stored and maintained.

Address Electronic Records Issues

With the increasing prevalence of electronic record-keeping systems, practitioners must be prepared to address issues specific to digital records, including system security, backup procedures, and the ability to generate accurate printouts or exports.

Anticipate Authentication Challenges

Be prepared to address questions about record completeness, alterations, and the reliability of the business’s record-keeping systems. This may require testimony about quality control procedures and system safeguards.

Common Mistakes to Avoid

Assuming Familiarity Equals Foundation

As the V.S. Med. Servs. case illustrates, simply producing a witness who is familiar with records isn’t sufficient. The witness must have knowledge about how the records were actually created and maintained.

Overlooking Generation Testimony

V.S. Medical found no testimony about generation of the offered claim forms. A different case may use another appropriate foundation, but a witness relying on record practices must be able to explain the practices relevant to the exhibit.

Inadequate Advance Preparation

Business records foundation often requires coordination with records custodians, IT personnel, and other business representatives. Waiting until the last minute to secure proper foundation testimony can result in exclusion of crucial evidence.

Ignoring Opposing Counsel’s Objections

Defense attorneys often raise foundation objections to business records. Plaintiffs’ counsel should anticipate these challenges and be prepared with comprehensive foundation testimony that addresses likely objections.

The Broader Implications for Evidence Strategy

The business records exception represents just one aspect of a comprehensive evidence strategy. However, its importance cannot be overstated, particularly in cases where business records form the foundation for key arguments about liability, causation, or damages.

Courts in Long Island and New York City see countless cases where proper business records foundation makes the difference between success and failure. Attorneys who master the requirements of CPLR 4518 and understand how to present compelling foundation testimony will find themselves better positioned to achieve favorable outcomes for their clients.

Working with Experienced Legal Counsel

Establishing proper foundation for business records requires not only understanding the legal requirements but also practical knowledge of how different industries create and maintain records. This expertise is particularly important in complex cases involving multiple parties, extensive documentation, or technical record-keeping systems.

At the Law Office of Jason Tenenbaum, we have extensive experience working with business records across a wide range of practice areas. Our approach combines thorough knowledge of CPLR 4518’s requirements with practical understanding of how courts in Nassau County, Suffolk County, and New York City evaluate foundation testimony.

We work closely with clients to identify the right witnesses, prepare comprehensive foundation testimony, and anticipate potential challenges from opposing counsel. Our goal is to ensure that crucial business records are admitted into evidence and can support our clients’ legal arguments.

Conclusion: Foundation as the Key to Success

The business records exception under CPLR 4518 provides a powerful tool for admitting crucial evidence in New York litigation. However, as the V.S. Med. Servs. case demonstrates, the exception’s requirements must be taken seriously and satisfied completely.

The key lesson for practitioners is that familiarity with business records is not enough – witnesses must be able to testify specifically about how records were generated and maintained in the regular course of business. This requirement applies whether you’re dealing with medical records in a personal injury case, financial documents in a commercial dispute, or personnel files in an employment matter.

Success with business records foundation requires advance planning, careful witness preparation, and thorough understanding of the specific record-keeping procedures involved in your case. Attorneys who master these skills will find themselves better equipped to present compelling evidence and achieve favorable outcomes for their clients.

If you’re facing challenges with business records foundation or need assistance developing evidence strategies for your case, don’t let technical requirements undermine your clients’ interests. Contact our office at 516-750-0595 to discuss how we can help you establish proper foundation for crucial business records and strengthen your case presentation.

The information provided in this article is for educational purposes only and does not constitute legal advice. Business records foundation requirements can vary depending on the specific facts and circumstances of each case, as well as the particular records involved. Always consult with qualified legal counsel before making decisions about evidence strategy and witness preparation.

The missing testimony in V.S. Medical

V.S. Medical Services v Travelers, decided January 9, 2009, followed a nonjury trial. A former employee testified, but did not explain the generation of the claim forms. The provider rested without another witness. The Appellate Term affirmed dismissal on the record then presented.

The witness’s status as a former employee was not itself the stated defect. The missing foundation concerned the records. A current employee with the same gap in knowledge would not solve that problem merely by giving a current job title.

Ask what the record is being offered to prove

A billing form can show that a demand for payment was communicated. It can also be offered as proof of the underlying services. Those are different uses. Identify the proposition first, then the foundation needed for that use.

The later Viviane Etienne appellate history is essential context. The Court of Appeals’ 2015 decision addressed summary judgment for overdue no-fault benefits and accepted the billing company’s proof. The 2009 trial ruling should not be converted into a categorical rule that only a provider’s employee can prove a claim.

For a current motion, identify the forms, evidence of mailing and receipt, and the asserted basis for treating payment as overdue. If a record is also being used to establish the truth of a medical or billing assertion, address that evidentiary use separately. The Sin Medical note explains a document offered for a nonhearsay purpose.

Prepare the witness around the actual record

Ask the witness how they would make a record of this type of transaction. Who supplied the information? Was making a record of that kind of transaction part of the business’s regular business practice? When was the entry made relative to the date and time of the recorded event? How does what is being offered into evidence relate to the records maintained in the normal course of business?

These questions should uncover the witness’s actual knowledge. Do not ask a witness to adopt a standard paragraph about a process the witness never learned. If another person knows the relevant part, identify that person while there is time to obtain the evidence.

An affidavit suitable for a motion is not automatically a replacement for trial testimony. CPLR 3122-a provides a certification route with its own conditions and notice procedure. Determine the available route before assuming that an affidavit attached to earlier motion papers will establish the trial foundation.

Historical note: V.S. Medical concerns a failed trial foundation; evaluate current no-fault summary-judgment proof with Viviane Etienne, 25 NY3d 498, and distinguish the purpose for which each record is offered.

For a different issue in the same claim file, compare Park Slope’s medical-necessity dispute. A sufficient clinical response and a foundation for the underlying records are separate questions; neither should be assumed from the other.

Connect to the Encyclopedia

Start with the CPLR 4518 business-records hub. Compare the evidentiary purpose, witness knowledge and result in these notes:

• Etienne: third-party billing and the later appeal
• Yassin: police reports and double hearsay
• Manges: the origin of electronic data
• Brannon: incorporated records and competing opinions

For help assessing evidence in a pending civil matter, contact the firm with the complete records, motion papers and any court order. This historical discussion is general information, not advice on a particular file.