Why Trust This Analysis
This article is part of our ongoing 2106 and 2309 coverage, with 31 published articles analyzing 2106 and 2309 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.
Looking for the complete rule? This post analyzes one CPLR 4518(c) decision. For the full practitioner’s guide to CPLR § 4518 — foundation elements, leading cases, and practice pointers — see CPLR § 4518 Business Records: The New York Practitioner’s Guide.
Understanding the Admissibility of Government Records: A Lesson in Evidence Rules
No-fault insurance litigation frequently involves the use of government records and documents obtained from official websites. However, the distinction between what courts will accept under judicial notice versus what requires formal certification under CPLR 4518(c) can create unexpected pitfalls for practitioners. This distinction becomes particularly crucial when dealing with Department of State (DOS) records and similar governmental documentation.
The Appellate Term’s recent decisions in Throgs Neck Multicare highlight an important evidentiary principle that affects how attorneys must prepare and present their cases. While courts may take judicial notice of certain information available on government websites, this doesn’t automatically make printouts from those sites admissible evidence without proper certification.
This case serves as a reminder that even experienced practitioners can find themselves on the wrong side of evidence rules, particularly when the law continues to evolve around the intersection of traditional evidence requirements and modern digital record-keeping. The ongoing tension between judicial notice principles and certification requirements reflects broader challenges in adapting established legal frameworks to contemporary practice.
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Jason Tenenbaum’s Analysis:
Throgs Neck Multicare, P.C. v Mercury Cas. Co., 2016 NY Slip Op 51081(U)(App. Term 2d Dept, 2016)
Throgs Neck Multicare, P.C. v Mercury Cas. Co., 2016 NY Slip Op 51083(U)(App. Term 2d Dept. 2016)
I fell victim to 4518(c) and the case on point: Dyer v 930 Flushing, LLC, 118 AD3d 742 ). Now that I see this case, I vaguely remember reading Dryer and shaking my head. Perhaps I should have banged my head against something so I remembered that when I approved the Reply that went out.
The Court now shook its head at me. The Dryer case found the DOS printouts from the NYS website are not admissible evidence unless certified. (By the way, certifying DOS records is really easy) What is interesting is that judicial notice will be given to various items on governmental websites, so this case is the analogue of those cases.
I sense at some point, the 4518(c) v. Judicial notice cases will get a “Fontanetta v. Doe, 73 AD3d 78 (2d Dept. 2010)” type treatment and a more solid rule will be created. As of now, I was on the losing end of this battle.
Key Takeaway
Government website printouts require proper certification under CPLR 4518(c) to be admissible evidence, despite courts potentially taking judicial notice of the same information. The distinction between judicial notice and evidentiary admissibility continues to create challenges for practitioners, suggesting future appellate guidance may be needed to establish clearer procedural compliance standards.
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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
CPLR 2106 and 2309: Affirmation & Oath Requirements
CPLR 2106 governs who may submit an affirmation in lieu of an affidavit in New York courts, while CPLR 2309 addresses the requirements for oaths, affidavits, and the certification of out-of-state documents. These seemingly technical provisions have significant practical impact — an improperly executed affirmation or affidavit can render an entire summary judgment motion defective. These articles analyze the formal requirements, common defects, and court decisions that practitioners must navigate when preparing sworn statements.
31 published articles in 2106 and 2309
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Renewal Under Certain Circumstances May Be Granted to Correct an Improper Affirmation: A Comprehensive Guide to CPLR 2106 Requirements
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Court rules on certificate of conformity requirements for affidavits in default judgment motions, finding waiver of CPLR 2309(a) defects is permissible.
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Green excluded an affidavit on a default-vacatur motion in 2010. Compare Donsimoni's later cure ruling and the current CPLR 2106 alternative.
May 2, 2010Was 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 2106 and 2309 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.
