Hearsay of debt collectors in New York

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Since the documents are out-of-court statements offered for their truth, plaintiff must establish that they fall within an exception to the hearsay rule in order for them to be admissible. ( Nucci v Proper, 95 NY2d 597, 602 [2001]).

Plaintiff is asking the Court to treat them as a business record since she describes herself as being familiar with plaintiff's business records (CPLR 4518[a]; see Kraus Mgt., Inc. v State Div. of Housing & Community Renewal, Office of Rent Admin., 137 AD2d 689, 691 [2d Dept 1988]).

However, the records attached were created not by plaintiff but by plaintiff's assignor.

In order to establish a business records foundation, the witness must be familiar with the entity's record keeping practices ( W. Valley Fire Dist. No. 1 v Vill. of Springville, 294 AD2d 949, 950 [4th Dept 2002]).

Plaintiff, unless is the original party to the purported contract may not claim to be familiar with credit maker record keeping practices, but only with the method by which plaintiff maintains the accounts it purchased from others.

The mere llewgatioin that plaintiff obtained the records from Assignor and then retained them is an insufficient basis for their introduction into evidence. ( Insurance Co. of North America v Gottlieb, 186 AD2d 471, 471 [1st Dept 1992]; Standard Textile Co. v National Equipment Rental, Ltd., 80 AD2d 911 [2d Dept 1981]; W. Valley Fire Dist. No. 1 v Vill. of Springville , 294 AD2d 949, 950 [4th Dept 2002]; see also United Bldg. Maint. Assocs. v 510 Fifth Ave. LLC, 18 AD3d 333, 334 [1st Dept 2005]). [FN1]

Therefore, the Court cannot rely on the account statements which plaintiff proffered to establish defendant's default.


[FN1]
This is not a situation where the relationship between the proponent of the record and the maker of the record guarantees the reliability of the records, such as where the maker of the record was acting on behalf of the proponent and in accordance with its requirements when making the records, ( People v Cratsley, 86 NY2d 81, 89-91 [1995]) or where the proponent of the records relies contemporaneously on the accuracy of the other entity's records for the conduct of its own business (People v DiSalvo , 284 AD2d 547, 548-9 [2d 2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [2d Dept 1986]).

Here, there is no evidence that there was any relationship between teh alleged Assignor and plaintiff at the time that the records were created.

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Related to CPLR R. 4518 -- Foundation (including "electronic records")
CPLR R. 4518 Business records

People v Manges, 2009 NY Slip Op 08258 (App. Div., 4th, 2009)

    Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and attempted grand larceny in the third degree (§§ 110.00, 155.35). We agree with defendant that County Court erred in admitting in evidence a printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that "anyone [at the bank] can sit down at a computer and enter information." Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495). In the absence of the printout, the People failed to establish an essential element of the crime of criminal possession of a forged instrument, i.e., defendant's knowledge that the check presented to the bank teller was forged (see People v Johnson, 65 NY2d 556, 560, rearg denied 66 NY2d 759; cf. People v Shabazz, 226 AD2d 290, lv denied 88 NY2d 994) and, thus, they also failed to establish an essential element of the remaining crime of attempted grand larceny in the third degree, i.e., that the property was stolen.

Palisades Collection, LLC v Kedik, 2009 NY Slip Op 08259 (App. Div., 4th, 2009)

    To establish standing to sue, plaintiff was required to submit admissible evidence that Discover assigned its interest in defendant's debt to plaintiff (see generally Rockland Lease Funding Corp. v Waste Mgt. of N.Y., 245 AD2d 779). Here, plaintiff submitted an affidavit from its agent with exhibits, including a printed copy of several pages from an electronic spreadsheet listing defendant's Discover account as one of the accounts sold to plaintiff. Contrary to the contention of plaintiff, the court properly determined that it failed to establish a proper foundation for the admission of the spreadsheet under the business record exception to the hearsay rule (see generally Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531).    A business record is admissible if "it was made in the regular course of any business and . . . it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518 [a]; see generally People v Kennedy, 68 NY2d 569, 579-580). "A proper foundation for the admission of a [*2]business record must be provided by someone with personal knowledge of the maker's business practices and procedures" (West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Although plaintiff's agent averred that the spreadsheet was kept in the regular course of business and that the entries therein were made in the regular course of business, the agent did not establish that he was familiar with plaintiff's business practices or procedures, and he further failed to establish when, how, or by whom the electronic spreadsheet submitted in paper form was made (see CPLR 4518 [a]; West Val. Fire Dist. No. 1, 294 AD2d at 950). Furthermore, although an electronic record "shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record" (id.), plaintiff's agent failed to establish that the printed electronic spreadsheet submitted to the court was a true and accurate representation of the electronic record kept by plaintiff.