Plaintiff, the New York City Department of Education ("DOE") commenced the above action on October 19, 2009 to recover for overpayment of wages in the amount of $1,463.98, which occurred around September 6, 2005.

The trial of the action took place on March 15, 2010. After considering and weighing the testimony and documentary evidence, and having had the opportunity to assess the credibility and demeanor of the witnesses, the Court makes the following findings of fact and conclusions of law:

At trial, plaintiff called Mr. Ramdat, an Employee with the New York City Department of Education Payroll Department, who had the responsibility of settling accounts upon a DOE employee's termination or retirement. Mr. Ramdat stated that this case was brought to recover 16 sick days that defendant allegedly overused.

Plaintiff sought to enter into evidence, as exhibit 1, an alleged summary of the defendant's negative sick leave balance. The documents underlying the summaries were neither offered into evidence and were not given to defendant for examination. It is well settled law that "[s]ummaries of voluminous records are admissible as long as the opposing party is provided with the original data" (People v Potter, 255 AD2d 763, 767 [3d Dept 1998] [citations omitted]). Thus, the documents were properly excluded because the defendant "was denied access to the underlying material" (Ed Guth Realty, Inc. v Gingold, 34 NY2d 440, 452 [1974]; see also Von [*2]Sachs v Kretz, 27 Sickels [72 NY] 548, 552 [1878] [holding, in relevant part, that the admission of a summary under the voluminous writings exception to the best evidence rule rests in the sound discretion of the trial court]; cf. People v Weinberg, 183 AD2d 932 [2d Dept 1992] [holding that a summary was admissible over best evidence objection because "defendants received a full and fair opportunity of challenging the accuracy of the print-outs by comparing the tapes with the print-outs"]).

Plaintiff sought to introduce exhibits 2, 3, 4, 5 and 6, as business records to show that defendant had a negative sick leave balance upon the termination of her position. Given the insufficient foundational testimony, defendant objected to the admission of the documents because they constituted hearsay (CPLR 2001; CPLR 4518; Johnson v Lutz, 253 NY 124 [1940]). This court properly sustained defendant's objection because to "these statutory requirements [of CPLR 4518], the case law has added that not only must the entrant be under a business duty to record the event, but the informant must be under a contemporaneous business duty to report the occurrence to the entrant as well' (Matter of Leon RR, 48 NY2d 117, 122, 421 N.Y.S.2d 863, 397 N.E.2d 374)" (Corsi v Town of Bedford, 58 AD3d 225, 229 [2d Dept 2008]). Here, the document was inadmissible because plaintiff failed to state whether the information in the documents was entered by and/or received from someone acting under a business duty (Hochhauser v Electric Ins. Co., 46 AD3d 174 [2d Dept 2007]; see also Tompkins v Fonda Glove Lining Co., 26 Bedell [188 NY] 261, 264 [1907]).

With respect to hearsay, "it is a requisite that, whatever facts the witness may speak to, he should be confined to those lying in his own knowledge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be" (Greenleaf on Evidence [16th Ed.] vol. 1, § 98, p. 182; see also Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495 [2d Dept 2007]). In Fabrigas v Mostyn, 20 How St Tr 135, it was stated that "[h]earsay is no evidence" (Wigmore on Evidence § 1364 [3d Ed 1940]). Similarly, in 1683 at Lord Russell's Trial (9 How St Tr 577, 613) , Lord Chief Justice Pemberton stated that "[t]he giving evidence by hearsay will not be evidence" (Wigmore on Evidence § 1364 [3d Ed 1940]). Thus, it is firmly rooted in our jurisprudence that "hearsay can condemn no man" (Wigmore on Evidence § 1364 [3d Ed 1940] [citations and quotations omitted]). One reason given by the United States Supreme Court was that hearsay has an "intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible" (Queen v Hepburn, 7 Cranch [11 US] 290, 296 [1813]).

However, necessity dictated that business records be received into evidence, which gave rise to the business record exception to the hearsay rule's predecessors, the shopbook rule and regular entries rule (Prince, Richardson on Evidence § 8-302 [Farrell 11th Ed.]). In this regard, the then Supreme Court of the State of New York stated that "from the necessity of the case, and the consideration that the party debited is shown to have reposed confidence, by dealing with, and being intrusted by, the other party, they are evidence for the consideration of a jury" (Vosburgh v Thayer, 12 Johns 461 [1815]). "The reason for receiving statements in entries made in the course of business, as an exception to the rule, is that they were made as a part of the regular work of one's livelihood, or profession, and that 'the entry must have been of a fact within [*3]the personal knowledge of the declarant.' See Prof. Wigmore's (16th Ed.) edition of Greenleaf on Evidence, vol. 1, sec. 120a" (Leask v Hoagland, 205 NY 171, 176 [1912]; see also Rogers v Trs. of NY & Brooklyn Bridge, 11 AD 141 [2d Dept 1896]; see also Reiss v Roadhouse Rest., 70 AD3d 1021 [2d Dept 2010]).

Furthermore, the shopbook rule extended to "[a]ny form of book. . ., provided it is regularly kept. . .nor does it matter what the material is" (Greenleaf on Evidence [16th Ed.] vol. 1, § 120c, p. 210). Further, the entry must be made with the act or event recorded or soon thereafter (Id.). These requirements were incorporated into this State's business record exception to the hearsay rule because "neither the fact that records are those of a criminal enterprise, nor the fact that the alleged enterprise is a one-man business, disqualifies them from consideration as business records within CPLR 4518(a)" (People v Kennedy, 68 NY2d 569, 576 [1986]; see also Livingston v Arnoux, 11 Sickels [56 NY] 507 [1874]).

Additionally, with respect to regular entries in the course of business, the proponent of such evidence must establish that "the entrant must have no motive to misrepresent" (Greenleaf on Evidence [16th Ed.] vol. 1, § 120a, p. 205 [citations omitted]). This requirement best explains why the Court of Appeals stated, in regard to CPLR 4518, that the aforementioned concern is satisfied by establishing "the routineness of the entry in the usual course of business tends to guarantee truthfulness because of the absence of motivation to falsify" (Ed Guth Realty, Inc. v Gingold, 34 NY2d 440, 451 [1974]).

"[I]n England, an additional limitation, not in this country, obtains, in that the declarant must have been under a duty to a superior to make the statement - a duty to do the thing recorded, to record or otherwise report it, and to report it at the time" (Greenleaf on Evidence [16th Ed.] vol. 1, § 120a, p. 205 [citations omitted]). This rule was subsequently adopted by the Court of Appeals and incorporated into this State's law regarding the business record, or its predecessor exception of the common law regular entries, exception to the hearsay rule (see e.g. City of New York v Second Ave. R. Co., 57 Sickels [102 NY] 572, 581 [1886]; People v Mingo, 12 NY3d 563, 574 [2009]). Thus, CPLR 4518 finds its genesis in necessity and reliability, which were never established in the instant case.

Therefore, merely reiterating the statutory language of CPLR 4518, without more, is insufficient for the documents admission into evidence, especially where the document is generated by a third party (see e.g. Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1331 [4th Dept 2009]; People v Cratsley, 86 NY2d 81, 90 [1995]). Thus, counsel's contention that he laid a proper foundation under CPLR 4518 is without merit and contrary to the great weight of authority.

Accordingly, plaintiff failed to establish its prima facie case by a preponderance of the credible evidence that the defendant received income that she did not earn (see e.g. Kelvasa v Barrett, 2008 NY Slip Op 50043[U] [App Term, 9th & 10th Jud Dists]; see also Guerrand-Hermes v Guerrand-Hermes, 30 AD3d 339, 340 [1st Dept 2006]).

Based on the above, it is hereby

[*4]ORDERED that judgment be entered in favor of defendant LAURA DEMARIA and against plaintiff THE NEW YORK CITY DEPARTMENT OF EDUCATION and that plaintiff's complaint be DISMISSED with prejudice on the merits; and it is further



The foregoing constitutes the Decision and Order of the Court.

DatedApril 28, 2010

Brooklyn, New York

_____________________________

Hon. Noach Dear, J.C.C.