Why Trust This Analysis
This article is part of our ongoing business records coverage, with 145 published articles analyzing business records 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.
Understanding Business Records in Mortgage Litigation
In mortgage foreclosure cases, banks often rely on business records to establish their standing and prove borrower default. These records become particularly complex when the original lender has been acquired or merged with another institution. The question then arises: can an employee of the successor bank authenticate records created by the predecessor bank?
This issue frequently surfaces in foreclosure litigation, where banks like JP Morgan Chase acquire failed institutions and inherit their mortgage portfolios. The challenge lies in establishing proper foundation for business records when the current employee reviewing the records wasn’t present during their creation. Courts must balance the practical realities of bank mergers against evidentiary requirements for business records.
The interplay between business records exceptions and personal knowledge requirements creates a nuanced area of evidence law. Unlike situations involving uncertified reports where authentication may be more straightforward, successor bank scenarios require careful consideration of the affiant’s relationship to the original record-keeper.
Jason Tenenbaum’s Analysis:
JP Morgan Chase Bank v Shapiro, 2013 NY Slip Op 01357 (1st Dept. 2013)
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“The underlying mortgage and note were originally held by Washington Mutual Bank, FA (WAMU). Plaintiff submitted the affidavit of an employee who identified herself as having personal knowledge of, inter alia, plaintiff’s status as successor-in-interest to WAMU and defendant Saadia Shapiro’s default. This was based upon her review of plaintiff’s books and records and its account records regarding Shapiro’s delinquent account (see CPLR 3212).”
Note that affiant was related to successor entity and was not employed when record was generated. This will cut both ways.
Key Takeaway
The Shapiro decision demonstrates that courts may accept business records from successor entities even when the authenticating witness wasn’t employed during record creation. However, this creates both opportunities and vulnerabilities for the authenticating party. While it allows banks to use inherited records, it also opens potential challenges regarding the witness’s actual knowledge and the reliability of predecessor institution records.
Legal Update (February 2026): The business records authentication requirements discussed in this 2013 post may have been modified by subsequent court decisions and potential amendments to CPLR Article 45 regarding business record exceptions. Additionally, foreclosure practice and successor bank authentication standards may have evolved through appellate decisions since 2013. Practitioners should verify current CPLR provisions and recent case law regarding business record foundation requirements in mortgage litigation.
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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
Business Records & Documentary Evidence in New York
The business records exception to the hearsay rule is one of the most important evidentiary foundations in New York litigation. Establishing that a document qualifies as a business record under CPLR 4518 requires showing it was made in the regular course of business, at or near the time of the event, and that it was the regular practice to create such records. In no-fault and personal injury cases, disputes over business records arise constantly — from claim files and medical records to billing documents and mailing logs.
145 published articles in Business records
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Common Questions About This Topic
1 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
How are business records used as evidence in no-fault cases?
Business records are critical evidence in no-fault litigation. Under CPLR 4518(a), business records are admissible if made in the regular course of business, at or near the time of the event recorded, and if it was the regular practice of the business to make such records. In no-fault cases, insurers' claim files, mailing logs, denial letters, and EUO/IME scheduling records are frequently offered as business records. The proper foundation must be laid through testimony from a qualified witness or through a certification under CPLR 4518(c).
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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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