17.0 I. Admissibility Under The Business Records Rule

• Jurisdiction: New York

I. ADMISSIBILITY UNDER THE Business Records Rule

Any writing or record made as a memorandum or record of any act, transaction, occurrence or event is admissible in evidence as proof of that act, transaction, occurrence or event, provided the judge finds the document was made in the regular course of any business and it was the regular course of the business to make it.³⁸³ The term business includes a business, profession, occupation and calling of every kind.³⁸⁴

Records and writings are not only admissible under the business records rule but are also prima facie evidence of the facts contained therein.³⁸⁵ A statement in a record or report may be admitted as proof of the facts recorded therein if the informant was under a business duty to perceive the event and to transmit information concerning the event to an individual who was under a business duty to record it. The fact that an entry is self-serving does not bar its admission.³⁸⁶

If the informant was not under a business duty to impart the information but the individual who entered the information was under a business duty to obtain and record the statement, the entry is admissible merely to establish that the statement was made. A hearsay exception is needed in order to admit the statement for its truth.³⁸⁷

A business record is admissible even if the person who prepared the record is available to testify.³⁸⁸ Voluntary hearsay statements by third persons not employed by the hospital or under any duty in relation to the hospital or its business are not admissible under CPLR 4518.³⁸⁹ An entry is inadmissible absent proof as to (1) who made the entry, (2) whether such individual was under a duty to make the entry, (3) the source of the information or (4) whether the entry was made in the regular course of business.³⁹⁰

The judge also must find, as a condition for admission into evidence, that the entry was made at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.³⁹¹ A business record made within a reasonable time of the related occurrence is admissible as a business record under CPLR 4518;³⁹² a record or report not made within a reasonable time after the related event is not admissible under the business entry rule.³⁹³

All other circumstances surrounding the making of the document, including the maker’s lack of personal knowledge about the event, may be shown to the jury to affect the weight of the document but not its admissibility.³⁹⁴ Objections that go to the weight of a diagnosis or treatment noted in a record do not affect the admissibility of the record.³⁹⁵ A challenge may be made, however, based upon the argument that no foundation was laid as to either the nature of the tests and procedures recorded or the scientific reliability of such tests and procedures.³⁹⁶

Objecting to admission of a hospital or medical record under the business records rule preserves a party’s right to seek appellate review of a subsequent erroneous receipt of the record when offered under a different evidentiary rule.³⁹⁷ A party waives his or her right to...