A CPLR 3122-a certification of business records lets you put a New York business’s records into evidence at trial without putting a records custodian on the stand. The custodian signs a sworn affidavit that tracks the foundation CPLR 4518(a) would otherwise require from live testimony, you serve the opposing side with written notice at least 30 days before trial, and if no timely objection comes back, the records are admitted as prima facie evidence of what they say.
What the Affidavit Must Say
CPLR 3122-a(a) spells out four statements the certification has to contain. Leave any one of them out and the shortcut fails.
- That the affiant is the authorized custodian or another qualified witness with authority to make the certification.
- That, to the best of the affiant’s knowledge after reasonable inquiry, the records or copies are accurate versions of the documents described in the subpoena.
- That, to the best of the affiant’s knowledge after reasonable inquiry, the records represent all documents described in the subpoena, or, if any are missing, what is missing and why.
- That the records were made by the business’s personnel (or persons under their control) in the regular course of business, at or within a reasonable time after the event recorded, and that it was the regular course of business to make such records.
That fourth statement is where most fights happen. It is the same foundation CPLR 4518(a) requires for the business-records hearsay exception generally;1New York State Senate. New York Civil Practice Law and Rules R4518 – Business Records the certification just packages that foundation in writing.
The affiant does not have to be the person who created the records. A designated representative at a hospital, bank, or corporation can sign, as long as they understand the system used to make and keep them. The affidavit has to be sworn before a notary.2New York State Senate. New York Civil Practice Law and Rules R3122-A – Certification of Business Records If more than one person has knowledge of the relevant facts, CPLR 3122-a(b) lets you submit multiple certifications; one person at a company can certify billing records while another handles personnel files.
Serving the 30-Day Notice
A clean certification is only half the work. Under CPLR 3122-a(c), you have to serve the opposing party with written notice of your intent to use the certified records at least 30 days before trial or the hearing.2New York State Senate. New York Civil Practice Law and Rules R3122-A – Certification of Business Records The notice must specify a location where the opposing party can inspect the records at reasonable times. The statute does not require you to attach full copies; it requires you to tell the other side where to look.
Miss the 30-day window and the shortcut is gone. The only remaining path is the traditional one: subpoena the custodian to appear and testify in person, with the attendant statutory witness fees and scheduling problems.3New York State Senate. New York Code CVP 8001 – Persons Subpoenaed; Examination Before Trial; Transcripts of Records For cases built on records from hospitals, banks, or out-of-county businesses, that is exactly the burden the certification exists to avoid.
The 10-Day Objection Window
The opposing party has a tight deadline to push back. A written objection stating the grounds must be served no later than 10 days before trial or the hearing.2New York State Senate. New York Civil Practice Law and Rules R3122-A – Certification of Business Records A vague protest will not do. Typical grounds include whether the records really were kept in the regular course of business, whether the affiant actually knew the record-keeping system, and whether the production is complete.
Two things are worth knowing about objections. There is no penalty for making one; the statute protects the right to object in any instance. And filing a notice of intent does not stop the opposing side from subpoenaing the custodian to appear and testify live anyway. The certification procedure is an alternative to live testimony, not a shield against it.
If no timely objection comes in, the right to challenge authenticity is generally waived. The narrow exception: a party can object at trial if the grounds rest on evidence that could not have been discovered through due diligence before the deadline.
What Happens at Trial If Nobody Objects
Without a valid objection, the certified records are deemed to satisfy CPLR 4518(a), and under CPLR 3122-a(b) the certification itself is admissible and its contents are presumed true.2New York State Senate. New York Civil Practice Law and Rules R3122-A – Certification of Business Records The records come in as prima facie evidence of the facts they describe, which the court accepts unless the opposing party puts in contrary evidence. The weight of the records is still open to attack through cross-examination of other witnesses, competing documents, or expert testimony. What the certification removes is the need to call a foundation witness just to open the door.
Records the Shortcut Will Not Cover
Not every document a business holds qualifies. The certification tracks the business-records hearsay exception, which requires that the record was made in the ordinary course of operations and not produced because a lawsuit was filed or anticipated. New York courts have held that documents created solely for litigation purposes fall outside the exception.4New York State Unified Court System. 8.08 Business Records (CPLR 4518)
An accident report filled out by an employee on the day of the incident as part of standard company procedure will usually qualify. A memo written by the same company’s lawyer two months later summarizing what happened will not. If there is any doubt about when and why a record was created, expect an objection and expect the court to look hard at the circumstances.
Non-Party Records
CPLR 3122-a(d) extends the certification procedure to records produced by non-parties, whether or not they came through a subpoena.2New York State Senate. New York Civil Practice Law and Rules R3122-A – Certification of Business Records The certification is narrower in that situation: only paragraphs one, two, and four of subdivision (a) apply. The completeness statement in paragraph three drops out, which makes sense because a non-party responding to a subpoena may not know whether its production captures everything the requesting party described.
If Your Case Could End Up in Federal Court
The federal analog, Federal Rule of Evidence 902(11), covers similar ground but differs on timing and inspection.5Legal Information Institute. Rule 902. Evidence That Is Self-Authenticating Rule 902(11) asks for “reasonable written notice” rather than a fixed 30 days, and it requires making both the record and the certification available so the adverse party has a fair opportunity to challenge them. CPLR 3122-a requires specifying an inspection location and ties the objection window to a firm 10-days-before-trial cutoff. If the case could be removed or involves parallel federal claims, build your workflow to meet both.