A business record can be anything

Last reviewed: September 2026.

Jason’s original November 2017 commentary:

Here is an irony. Now that the notion of a business record plays a minimal role in no-fault practice, where do we now see intense skirmishes over this item?  Mortgage Foreclosure actions and credit card collections.  Oh and here is more irony for those who have been in the no-fault game for too long.  Which Department requires a more particularized affidavit to satisfy 4518(a), and which requires watered down, conclusory assertions?    the answer is below, but you should know it already.

Bank of Am., N.A. v Brannon and notarization defects under CPLR 2101(f)

Bank of Am., N.A. v Brannon, 2017 NY Slip Op 07578 (1st Dept. 2017)

(1) “Furthermore, under the circumstances before us, the flaws in the notarization of Mattera’s affidavit are not fatal to plaintiff’s summary judgment motion (see Matter of Cubisino v Cohen, 47 NYS2d 952, 953-954 , affd 267 App Div 891 ; Fisher v Bloomberg, 74 App Div 368, 369 ; see also Sirico v F.G.G. Prods., Inc., 71 AD3d 429, 434 ; Todd v Green, 122 AD3d 831, 832 ). Pursuant to CPLR 2101(f) the court can disregard a defect in the Uniform Certificate of Acknowledgment unless a defendant has demonstrated that a substantial right of hers has been prejudiced. As no prejudice has been shown by defendant, the alleged defect should have been disregarded”

Jason’s original aside:

This is a bonus citation to those who enjoy arguing that irregularities in the notarization voids an affidavit.  It is not related to the substance of the post.

Personal knowledge and assignor records under CPLR 4518(a)

(2) “Furthermore, CLPR 4518(a) does not require a person to have personal knowledge of each of the facts asserted in the affidavit of merit put before the court as evidence of a defendant’s default in payment (see Citigroup v Kopelowitz, 147 AD3d 1014, 1015 [“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon”]; Citibank, NA v Abrams, 144 AD3d 1212 ). Thus, in seeking to enforce a loan, an assignee of an original lender or intermediary predecessor may use an original loan file prepared by its assignor, when it relies upon those records in the regular course of its business (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418 ; see also State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 , lv denied 20 NY3d 858 ).”

(2a)

“Here, Mattera, a representative of IFS, which has held the note and mortgage since November 2009, satisfied these standards, stating that

The affidavit language on record keeping systems

“I make this affidavit with personal knowledge of the facts and circumstances herein which are derived from personal knowledge and/or an independent examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of Plaintiff to be an accurate and fair representation of the occurrences with which the record purports to represent as well as business records relative to the within litigation. I am familiar with the record keeping systems that Plaintiff and/or its loan servicer uses to record and create information related to the residential mortgage loans that it services, including the processes by which Plaintiff and/or its loan servicer obtains the loan information in those systems. While many of those processes are automated, where the employees of the Plaintiff and/or its servicer manually enter data relating to loans on those systems, they have personal knowledge of that information and enter it into the system at or near the time they acquired that knowledge. The records relied upon are made in the regular course of business made at or about the time the event is being recorded, systematically made for the conduct of business and are relied upon as the accurate routine reflections of the day-to-day regularly conducted business activity and so they may be relied upon as being truthful and accurate. In connection with making this affidavit, I have personally examined these business records reflecting data and information as of January 31, 2015… .

* * *

“I have also reviewed Plaintiffs books and records, and the payments of principal and interest made by Defendant(s) to Plaintiff. Any allegation of either full or timely payment after default is simply not substantiated by these records. All notices of default as required in the Note have been sent as prescribed in the Mortgage … . All time frames set forth in the notice and /or notices, as required by the Mortgage have elapsed and the Defendant(s) have not taken the necessary action to correct the default and or defaults as specified herein and in the Complaint… .

* * *

“The simple uncontroverted fact is that Defendant, SARAH BRANNON, was loaned and did receive $360,000.00, as is confirmed by the Mortgage and Note. Defendant did not uphold this obligation, to the detriment of Plaintiff. Defendant breached his/her obligations under the Mortgage by failing to successfully tender funds for the August 1, 2007 payment and all successive payments thereafter.”

The dissent on familiarity with the antecedent entity’s records

(2b) “While the dissent finds the affidavit deficient because Mattera did not state that he was familiar with the records of GE, the Default Notice was sent by Litton, plaintiff’s agent, and Mattera stated that he was familiar with the recordkeeping systems that plaintiff and/or its loan servicer used. He also stated that he personally reviewed plaintiff’s books and records, and the payments made by defendant”

Jason’s original criticism of the majority:

What was missing from what was a 2-3 page affidavit?  How was the affiant familiar with the antecedent entity’s record keeping?  The dissent harped on this issue and, under a technical reading of 4518(a), the dissent is correct.  The First Department accepts the legal fiction that a current entity can have personal knowledge about a prior entity and, therefore, establish the requisite personal knowledge to substantiate a business record.  But in my mind, if you are going to head down this path, take ownership of it.  Do not hide behind cases that are not directly on point.

Read the majority and the partial dissent separately

Bank of America v Brannon, decided October 31, 2017, granted summary judgment and an order of reference. The majority accepted the record foundation and considered the borrower’s admissions and uncontroverted default. The partial dissent agreed that summary judgment was available on the admissions, but disagreed about the affidavit and order of reference.

Jason’s original criticism focuses on knowledge of a predecessor’s records. Preserve it as criticism, not as the court’s holding. Neither the headline nor that criticism establishes that any document becomes admissible merely because a business possesses it.

Connect the witness to the particular records

The useful inquiry is how the witness knows the process and what records the witness actually reviewed. If the proponent relies on incorporated records, explain incorporation and reliance in the receiving business’s operations. A generic reference to “books and records” may leave the source of a disputed entry unclear.

Identify who made the entry, who maintained it and who performed the act that’s being proven. With a notice, the sender might be different than the original lender or the current owner and a statement about one entity’s system doesn’t automatically apply to all three of them.

Do not require a witness to have personally observed every transaction. Conversely, do not equate an officer’s title with knowledge of every predecessor’s practice. The motion needs the factual connection supporting the evidentiary route claimed.

Keep the notarization point narrow

Brannon disregarded the defect described in its record where no substantial prejudice had been shown. That is not a general instruction to omit required formalities or to treat a forged or unauthorized signature as harmless.

For statements being prepared now, CPLR 2106 permits qualifying affirmations, subject to its exceptions. The current affirmation guide addresses the available form. A compliant affirmation still needs a witness who can support the assertions made.

Use the comparison cases for the missing link

Wheatley concerns an inadequate showing of mailing and notice compliance. Jones concerns a witness who could search a database without establishing the required basis for relying on its contents. Those failures do not contradict the proposition that a properly supported record from another entity can be used.

For no-fault billing, read the Viviane Etienne appellate history. The purpose of the evidence and the procedural burden matter; a foreclosure affidavit should not be copied into a medical billing case without that analysis.

Legal Update (September 2026): The historical notarization discussion must be read alongside current CPLR 2106 and the affirmation guide; Brannon’s majority, partial dissent and particular record must remain distinct.

Connect to the Encyclopedia

Start with the CPLR 4518 business-records hub. Compare the evidentiary purpose, witness knowledge and result in these notes:

• Yassin: police reports and double hearsay
• Jones: retrieval versus knowledge of record creation
• V.S. Medical: the missing trial foundation
• Wheatley: mailing proof and notice compliance
• Current CPLR 2106 affirmation requirements
• Manges: unexplained data in an electronic record

For help assessing evidence in a pending civil matter, contact the firm with the complete records, motion papers and any court order. This historical discussion is general information, not advice on a particular file.