16.68 - G. Business Record Entry Must Be Made At Time Of Act, Transaction, Occurrence Or Event, Or Within A Reasonable Time Thereafter— The Contemporaneousness Element

• Jurisdiction: New York

G. Business Record Entry Must Be Made at Time
of Act, Transaction, Occurrence or Event,
or Within a Reasonable Time Thereafter—
the Contemporaneousness Element

N.Y. Civil Practice Law & Rules 4518(a)’s “contemporaneous” entry requirement is, “essentially, that recollection be fairly accurate and the habit or routine of making the entries assured.”²³⁹⁷ It is not a “simultaneous” entry requirement. Of course, memory is not a factor when a copy, by hand or machine, is made of a contemporaneously recorded fact, transaction or occurrence. To quote a court quoting a commentator:

Where the original record is routinely copied into a more permanent form, with the original then being destroyed, the copy may be made at any time the routine of the business requires; since memory is not being relied upon, the concept of contemporaneous entry is not in point. ²³⁹⁸

On a related point, “contemporaneous” or “within a reasonable time thereafter” are relative terms. Continuing neglect of legal duty over a long period of time may be recorded long after the neglect initially commenced.²³⁹⁹ The opposite would be true with respect to the daily inventory of bananas sold and maintained by a peddler. Assessed in light of a fact’s duration, magnitude or significance, how much is raw memory being relied upon between the fact’s occurrence and its routine entry into the records of a business?

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Notes:

^[2397] . People v. Kennedy, 68 N.Y.2d 569, 580, 510 N.Y.S.2d 853 (1996).

^[2398] . People v. Klein, 105 A.D.2d 805, 806, 481 N.Y.S.2d 743 (2d Dep’t 1984), aff’d, 65 N.Y.2d 613, 491 N.Y.S.2d 155 (1985) (citing with approval In re “Male” G., 97 Misc. 2d 283, 411 N.Y.S.2d 102 (Fam. Ct., N.Y. Co. 1978).

^[2399] . See, e.g, People...