Key Takeaway
Portfolio Recovery case shows how CPLR 4518(a) business records rule applies to assigned debt collection, allowing self-authenticating statements and affidavits of sale as evidence.
This article is part of our ongoing business records coverage, with 53 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.
Portfolio Recovery Assoc., LLC v Lall, 2015 NY Slip Op 03284 (1st Dept. 2015)
For anyone who is worried about what a reversal of Vivanne Etienne and the professional affidavit signing doctor could mean, you only need to read Portfolio to see what CPLR 4518(a) really means in the world of assigned debt.
(1) “Plaintiff’s proof of the underlying debt obligation was shown through defendant’s testimony that he used the credit card issued by plaintiff’s assignor and by the self-authenticating account statements (see Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336 , lv denied 7 NY3d 715 ).”
Key line from Merrill Lunch
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
(“The amount of the indebtedness was established by the self-authenticating monthly statements of account sent to defendants and setting forth the balance due on the loan (see Elkaim v Elkaim, 176 AD2d 116, 117 , appeal dismissed 78 NY2d 1072 ). Moreover, a proper business records foundation for these statements was laid by plaintiff’s witness, who testified, inter alia, that plaintiff relies on these statements in the regular course of its business even though they were prepared not by plaintiff but for plaintiff by a sister company“)
(2) “Evidence of the assignment of defendant’s account was the affidavit of sale, which, although created by the assignor, was properly introduced as a business record through the testimony of plaintiff’s employee (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 ). Plaintiff’s reliance on documents of this type was a sufficient basis on which to permit its employee to lay the foundation for the admission of the affidavit of sale; contrary to defendant’s contention, it was not necessary that there be a special relationship between plaintiff and its assignor.”
This is a sad case on the state of evidence law in this state. Allowing a purchaser of debt to lay a foundation for the admission of an original creditor’s documents is patently unfair, especially when the debt purchaser has no knowledge of what the original creditor did.
This case conflicts with: Unifund CCR Partners v. Youngman, 89 A.D.3d 1377 (4th Dept. 2011)
Related Articles
- Business records challenges when data entry timing and personnel are unclear
- How assignments complicate business records authentication requirements
- Court guidance on applying the business records exception
- Understanding business records rule in no-fault insurance claims
- New York No-Fault Insurance Law
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.
53 published articles in Business records
Keep Reading
More Business records Analysis
4518(a)
Analysis of double hearsay issues in motor vehicle accident cases, examining inadmissible police reports and the business records exception under New York evidence law.
Sep 25, 2020
Business records "from another mother"
Court rules on admissibility of business records from liquidated insurance company in no-fault case, exploring the incorporation doctrine for successor entities.
Jan 28, 2019
The spreadsheet was not in admissible form?
Total Family v Mercury: the 2010 spreadsheet-foundation dispute, Jason's original explanation, and the mixed verification, billing and discovery result.
Aug 19, 2010
Pine Hollow Dead: Business Records Rule Restored in NY Personal Injury Law
Pine Hollow case overruled, restoring proper business records standards in NY personal injury law. Expert analysis from experienced Long Island attorney.
Apr 17, 2009
Business records and copies
New York court case analysis on business records admissibility, secondary evidence rules, and CPLR 4539(a) requirements for document authentication in litigation.
Feb 23, 2017
Business Records
Court accepts business records from bank successor even when affiant wasn't employed during original record creation, highlighting both strengths and limitations.
Mar 9, 2013Was this article helpful?
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.
If you need legal help with a business records matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
