Practice point: An unsworn incident report, prepared by defendants' general manager and submitted to show that the attack took place outside of defendants’ premises, is not evidentiary proof in admissible form if it is not authenticated by the attorney's affirmation to which it is attached, and defendants do not provide an affidavit from the general manager.
Practitioners should note that defendants’ bookkeeper’s affidavit stating that, on the night of the attack, the alleged assailant was in the club solely as a patron and not as an employee is inadmissible hearsay, since the bookkeeper does not aver that the affidavit is based on firsthand knowledge.
Case: Babikian v. Nikki Midtown, LLC, NY Slip Op 01722 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Motion practice.
