Key Takeaway
Appellate Division ruling on best evidence rule and exhibit tabs in New York courts - when original documents are required and procedural defects matter.
This article is part of our ongoing evidence coverage, with 126 published articles analyzing evidence issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
**BUMP**
Billingy v. Blagrove, 2011 N.Y. Slip Op. 03986 (2d Dept. 2011). ( I copied this from westlaw).
I am going to add this here. Somewhere in the universe of oppositions – besides my favorite about there not being a justiciable controversy to a DJ action despite a Claimant’s submission of bills for no-fault benefits that were denied- we now have the you did not put tabs in your papers, you do not have originals, your captions are off and the new one: “it does not have the ‘feel’ of an affidavit…” I saw this one from – well I am not going to name names… Oh yes, do affidavits have feelings? Ask Beaker what he thinks?
So – see below:
I think that the Courts in this State sometimes invent reasons to avoid addressing cases on their merits. The Appellate Division, Second Department, in their “default judgment” jurisprudence has proven this point. I do not have statistics – maybe Gottlieb in CPLR land has them – but the appellate court in Brooklyn really dislikes vacating defaults.
Well, how many of us have had a judge tell us: “If you do not put exhibit tabs on your papers, they will not be considered.” The other one is: “If you do not number your paragraphs in your affirmations they will not be considered”. People who know me understand my pet peeve about unnumbered affirmations, and there are plenty of you who read this who are guilty of that transgression.
But this case dealt with best evidence and untabbed affirmations, and held as follows:
“The oft-mentioned and much misunderstood best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven” (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643 ). Since the plaintiff did not dispute the existence of the defendant’s affidavit, or the accuracy of the relevant portions of the reproduction, the best evidence rule should not have been applied to bar consideration of the reproduction (see Comerica Bank, N.A. v Benedict, 39 AD3d 456, 458; Thomson v Rubenstein, 31 AD3d 434, 436; Chamberlain v Amato, 259 AD2d 1048, 1049). Moreover, in light of the “strong policy favoring disposition of actions on the merits” (Sanchez v Serje, 17 AD3d 562, 563), and given the circumstances of this case, the Supreme Court improvidently exercised its discretion to the extent that it refused to consider the reproduction of the defendant’s affidavit on the ground that the defendant’s opposition papers did not utilize protruding exhibit tabs (see Lee v Marino, 36 AD3d 454, 454-455; see also CPLR 2001; cf. Ali v Buno, 25 Misc 3d 1213, 2009 NY Slip Op 52086, *3 ). Accordingly, the Supreme Court should have considered the photocopy of the defendant’s affidavit submitted in opposition to the plaintiff’s motion for summary judgment on *2 the issue of liability (see CPLR 2101; Campbell v Johnson, 264 AD2d 461, 461; Matter of Lamont D., 247 AD2d 615, 615-616; Matter of Samuel E., 240 AD2d 251, 252).”
Oh by the way – photocopied signatures on peer reports and IME reports…. how will this case effect that jurisprudence?
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Legal Update (February 2026): Since this 2012 post, CPLR provisions regarding exhibit requirements and best evidence standards may have been subject to amendments or clarifying court decisions. Additionally, local court rules concerning exhibit tabbing, paragraph numbering, and affirmation formatting requirements may have evolved. Practitioners should verify current CPLR 2001 and 2101 provisions and consult recent appellate decisions regarding documentary evidence standards in no-fault litigation.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Evidentiary Issues in New York Litigation
The rules of evidence determine what information a court or arbitrator may consider in deciding a case. In New York no-fault and personal injury practice, evidentiary issues arise constantly — from the admissibility of business records and medical reports to the foundation requirements for expert testimony and the application of hearsay exceptions. These articles examine how New York courts apply evidentiary rules in insurance and injury litigation, with practical guidance for building admissible evidence at every stage of a case.
126 published articles in Evidence
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Frequently Asked Questions
What types of evidence are important in no-fault and personal injury cases?
Key types of evidence include medical records and bills, police accident reports, diagnostic imaging (MRI, X-ray, CT scans), expert medical opinions, business records from insurance companies and providers, witness statements, photographs of injuries and the accident scene, and employment records for lost wage claims. The rules of evidence under New York CPLR and the Evidence Rules govern what is admissible in court proceedings.
What is the business records exception to hearsay in New York?
Under CPLR 4518(a), a business record is admissible if it was made in the regular course of business, it was the regular course of business to make such a record, and the record was made at or near the time of the event recorded. This exception is crucial in no-fault litigation because insurers' denial letters, claim logs, and peer review reports are often offered as business records. The foundation for the business record must be established through testimony or a certification.
What role does diagnostic imaging play as evidence in injury cases?
Diagnostic imaging — MRIs, CT scans, X-rays, and EMG/NCV studies — provides objective evidence of injuries such as herniated discs, fractures, ligament tears, and nerve damage. Courts and arbitrators give significant weight to imaging evidence because it is less subjective than physical examination findings. In serious injury threshold cases under §5102(d), imaging evidence corroborating clinical findings strengthens the plaintiff's case considerably.
How do New York courts handle surveillance evidence in personal injury cases?
Insurance companies frequently hire investigators to conduct video surveillance of plaintiffs to challenge injury claims. Under CPLR 3101(i), a party must disclose surveillance materials prior to trial, including films, photographs, and videotapes. Surveillance evidence can be powerful for impeachment if it contradicts the plaintiff's testimony about limitations. However, courts may preclude surveillance that was not properly disclosed or that is misleadingly edited.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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