4518(a)

Looking for the complete rule? This post analyzes one business-records 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.

Under New York’s evidence law, CPLR § 4518(a) creates a business records exception to the hearsay rule, allowing certain documents to be admitted if they meet specific foundational requirements. However, police accident reports present unique challenges because they often contain double hearsay—the officer’s observations plus statements from witnesses or parties to the accident. When courts admit uncertified police reports or allow defendants to submit contradictory affidavits, complex evidentiary questions arise about the interplay between documentary evidence and witness testimony.

The case discussed below illustrates how appellate courts treat police accident reports in motor vehicle negligence cases, particularly when the report contains statements allegedly made by a defendant that conflict with their subsequent sworn testimony. This tension between documentary evidence and live testimony raises important questions about New York’s formalistic approach to evidence rules and whether practical considerations should sometimes override strict adherence to certification requirements.

Case Background

This rear-end collision case involved competing narratives about how the accident occurred. The plaintiff submitted his own affidavit establishing that the defendant Blackman struck his vehicle while it was stopped and waiting to make a right turn—the classic rear-end scenario that typically establishes prima facie liability. However, Blackman submitted an affidavit claiming the plaintiff’s vehicle was double-parked and suddenly cut in front of him when attempting to make a right turn.

The plaintiff sought to use an uncertified police accident report that purportedly contained admissions by Blackman inconsistent with his affidavit. The court’s treatment of this evidence highlights the technical requirements for admitting police reports and the practical difficulties that arise when certification is unavailable.

Jason Tenenbaum’s Analysis

Double hearsay

“In this case, even without the police accident report, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through his own affidavit, which established that Blackman was negligent in striking the plaintiff’s vehicle while it was stopped and waiting to make a right turn (see Montalvo v Cedeno, 170 AD3d 1166, 1167; Martinez v Allen, 163 AD3d 951, 952). However, in opposition, the defendants raised a triable issue of fact as to Blackman’s negligence, through the submission of, inter alia, Blackman’s affidavit, in which he claimed that the plaintiff’s vehicle was double-parked to the right side of his vehicle, and that “s I attempted to pass the , the laintiff … suddenly moved forward and cut me off to get in front of my vehicle in order make a right turn” (see Ortiz v Hub Truck Rental Corp., 82 AD3d 725, 727; Reitz v Seagate Trucking, Inc., 71 AD3d 975, 976).

Since the uncertified police accident report was inadmissible, we do not reach the plaintiff’s contention that Blackman’s affidavit should be disregarded as a feigned attempt to avoid the consequences of the admission he purportedly made to the police officer who prepared the police accident report (see generally Abramov v Miral Corp., 24 AD3d 397, 398).”

The problem I have with this case is that oftentimes, the DMV does take possession of local police reports. This makes the certification process difficult. I also do not see why the reports can be entered subject to a challenge from the opponent alleging on affidavit that the facts in the report are not true. This is just silliness and typical New York form over substance nonsense.

Legal Significance

The court’s holding that uncertified police reports are inadmissible reaffirms New York’s strict adherence to evidentiary formalities under CPLR § 4518. While this approach protects against unreliable hearsay, it can produce results that seem divorced from the search for truth. When a defendant makes statements to police at the accident scene, those statements may be more reliable than carefully crafted affidavits prepared months or years later with the assistance of counsel.

Jason Tenenbaum’s critique raises important policy considerations. When police reports are maintained by the DMV rather than local police departments, obtaining proper certification can be practically impossible. The suggestion that reports should be “entered subject to a challenge from the opponent alleging on affidavit that the facts in the report are not true” represents a sensible middle ground that would allow courts to consider contemporaneous evidence while still permitting parties to dispute inaccuracies.

The decision also touches on the “feigned affidavit” doctrine established in Abramov v Miral Corp. Under this doctrine, courts may disregard affidavits that contradict a party’s earlier admissions when the contradiction appears to be a transparent attempt to manufacture a factual dispute. However, because the police report was inadmissible, the court never reached the question of whether Blackman’s affidavit should be disregarded as feigned.

Practical Implications

For plaintiffs in motor vehicle accident cases, this decision underscores the critical importance of properly certifying police reports before attempting to use them as evidence. Attorneys should obtain certified copies directly from the police agency that prepared the report, and if the agency no longer maintains the records, they should document their efforts to obtain certification to potentially preserve the issue for appeal.

For defendants, the ruling provides a straightforward path to exclude uncertified police reports, even when those reports contain statements that would be difficult to explain. Defense counsel should routinely object to uncertified reports and move to strike them from the record.

More broadly, the decision highlights a tension in New York’s evidence law between formalism and pragmatism. While strict rules provide certainty, they can also exclude reliable evidence and allow parties to escape the consequences of their contemporaneous statements. Until the legislature or Court of Appeals addresses this tension, practitioners must navigate a system where “form over substance” often controls the outcome.

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