Business records and copies

The admissibility of business records and copies in New York litigation requires strict compliance with evidentiary rules designed to ensure document authenticity and reliability. When parties cannot produce original documents, they face heightened scrutiny under both the best evidence rule and CPLR 4539(a)‘s reproduction authentication requirements. The distinction between these two evidentiary pathways—secondary evidence under the best evidence rule versus authenticated reproductions under CPLR 4539(a)—can determine whether critical documentary evidence reaches the factfinder.

The best evidence rule reflects a fundamental principle: when proving the contents of a writing, the original document provides the most reliable evidence. However, New York recognizes an exception allowing secondary evidence when a party satisfactorily explains the original’s unavailability and demonstrates the absence of bad faith in its loss or destruction. This showing requires more than mere assertion—it demands threshold factual findings by the trial court establishing both unavailability and good faith.

CPLR 4539(a) offers an alternative route for introducing copies through proper authentication as reproductions. This statute permits admission of reproductions when they are “satisfactorily identified” as accurate copies of the original. The authentication requirement protects against the introduction of altered, incomplete, or fabricated documents that purport to be faithful reproductions. When parties fail to lay proper foundation showing that a copy accurately reflects the original document’s complete contents, courts must exclude the proffered evidence.

Case Background

In 76-82 St. Marks, LLC v Gluck, a commercial landlord brought suit to recover unpaid rent and enforce a personal guaranty allegedly signed by defendant Gluck. The plaintiff presented a copy of the guaranty that appeared incomplete, missing a substantial portion of paragraph 4. The defendant testified that the guaranty she executed contained complete paragraphs, contradicting the plaintiff’s incomplete copy. The plaintiff’s principal could not testify regarding the original guaranty’s execution, having no personal knowledge of whether the original was similarly deficient. This evidentiary gap proved fatal to the plaintiff’s case.

The case proceeded to trial where the plaintiff attempted to introduce the incomplete copy through multiple evidentiary theories. When the Supreme Court excluded the document, the plaintiff appealed, arguing the copy should have been admitted either as secondary evidence or as a reproduction under CPLR 4539(a).

Jason Tenenbaum’s Analysis

76-82 St. Marks, LLC v Gluck, 2017 NY Slip Op 01329 (2017)

(1) “Moreover, the Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith”. (Compare this to 4539 – note the differences in foundations)

(2) “The plaintiff’s principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a)”

(3) “Furthermore, Gluck is correct that the plaintiff failed to make a prima facie case regarding its damages, since the summary chart of charges and payments made under the lease was prepared solely in anticipation of litigation and should not have been received in evidence, and the plaintiff failed to provide any underlying documents to establish the proper charges and payments made”

Just amazing how another Plaintiff came to court unprepared to put documents into evidence.

Legal Significance

This decision reinforces critical principles governing documentary evidence in New York courts. First, it distinguishes between the best evidence rule’s secondary evidence exception and CPLR 4539(a)‘s reproduction authentication requirements, making clear these constitute separate and distinct foundations with different requirements. Parties cannot simply substitute one for the other when facing evidentiary challenges.

Second, the decision emphasizes that when the authenticity or completeness of a document is genuinely disputed, courts will not admit copies without proper foundation establishing they accurately reflect the original. The defendant’s testimony that she signed a complete guaranty, combined with the plaintiff’s lack of knowledge about the original, created precisely the type of disputed authentication that requires exclusion.

Third, the court’s rejection of the damages summary chart reinforces limitations on litigation-generated summaries. Documents prepared solely for litigation purposes lack the reliability inherent in business records created in the regular course of business operations. Without underlying source documents to support the summary, such litigation-prepared charts constitute inadmissible hearsay.

Practical Implications for Litigators

Attorneys handling commercial disputes or contract enforcement actions must maintain rigorous document management practices. Before trial, counsel should verify they possess original signed documents or, if originals are unavailable, develop a complete evidentiary foundation explaining the unavailability and establishing good faith. This foundation should include testimony from witnesses with personal knowledge of the document’s creation, execution, and subsequent handling.

When relying on copies, practitioners must ensure witnesses can authenticate the reproduction as a complete and accurate copy of the original. This typically requires testimony from someone who saw both the original and the copy and can attest to their identity. Generic assertions that a copy is “true and accurate” without supporting factual foundation will not satisfy CPLR 4539(a)‘s authentication requirement.

For damages calculations, attorneys should bring underlying source documents—invoices, payment records, ledgers, bank statements—rather than relying solely on summary charts prepared for litigation. If summaries are necessary due to voluminous records, counsel should follow proper procedures for introducing summaries under CPLR 4518, ensuring the underlying documents are available for inspection and that the summary accurately reflects those records.

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