Elkaim v. Elkaim, 176 A.D.2d 116 (N.Y. App. Div. 1991). · Go Syfert
Elkaim v. Elkaim, 176 A.D.2d 116 (N.Y. App. Div. 1991). Cases Citing This Book View Copy Cite
38 citation events (33 in the last 25 years) across 6 distinct courts.
Strongest positive: Matter of Sandler (nysurctnyc, 2025-09-15) · Strongest negative: In re John QQ. (nyappdiv, 2005-06-09)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited "but see" In re John QQ.
N.Y. App. Div. · 2005 · signal: but see · confidence high
Since Family Ct Act § 1046 (a) (iv) contains mandatory language that a certification from someone other than the head of the hospital shall be accompanied by the appropriate delegation of authority, we must find the admission of these records to have been in error if we are to give effect to the clear and unambiguous intention of the Legislature in employing these terms (see McKinney’s Cons Laws of NY, Book 1, Statutes §§ 76, 92; compare CPLR 4518 [c]; but see Elkaim v Elkaim, 176 AD2d 116, 117 [1991], lv dismissed 78 NY2d 1072 [1991]).
discussed Cited as authority (rule) Matter of Sandler
N.Y. Surr. Ct., New York Cty. · 2025 · confidence medium
Although bank records can sometimes be self-authenticating, there must be a basis in the record for the court to consider them trustworthy and authentic (see Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991] [citations omitted]).
discussed Cited as authority (rule) Matter of Hassine
N.Y. App. Div. · 2023 · confidence medium
Although "statements with which banks customarily supply their customers on a monthly basis for the purpose of advising them of deposits, withdrawals, and balances" can be admitted into evidence without foundation testimony ( Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991], lv dismissed 78 NY2d 1072 [1991]), none of objectants' purported bank records exhibits fall into this category.
cited Cited as authority (rule) Friedfeld v. Citibank, N.A.
N.Y. App. Div. · 2020 · confidence medium
In any event, the bank records that plaintiff discovered may be admissible as business records ( see Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991], appeal dismissed 78 NY2d 1072 [1991]).
discussed Cited as authority (rule) People v. Valerio
N.Y. City Crim. Ct. · 2016 · confidence medium
(People v Meyer, 177 Misc 2d 537 [App Term, 2d Dept 1998] [certified copies of DMV abstract and affidavit of mailing admissible].) A document can be “so patently trustworthy as to be self-authenticating.” (People v Kennedy, 68 NY2d 569 , 577 n 4 [1986]; Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991] [finding no reason to exclude from evidence bank statements that were “reliable” and “perfectly trustworthy” even though a business records foundation had not been laid].) Thus, for example, in People v Suarez ( 51 Misc 3d 620, 627-628 [Crim Ct, NY County 2016]), this court conclude…
discussed Cited as authority (rule) Capital One Bank v. Koralik
N.Y. App. Term. · 2016 · confidence medium
(Cf. Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991], appeal dismissed 78 NY2d 1072 [1991] [court ordered bank records of defendant husband, produced at divorce proceeding, were “patently trustworthy”].) Moreover, here, the submitted documents, attached to a roboaffidavit with numerous defects, offered by a “Legal Specialist,” employed by a nonparty, whose job is to “assist attorneys,” can hardly be deemed “patently trustworthy” for purposes of taking judicial notice as to their authenticity. 11 This is particularly true where the affiant Ward affirmatively misrepresents one…
discussed Cited as authority (rule) People v. Suarez
N.Y. City Crim. Ct. · 2016 · confidence medium
A document can be “so patently trustworthy as to be self-authenticating.” (People v Kennedy, 68 NY2d 569 , 577 n 4 [1986]; Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991] [finding no reason to exclude from evidence bank statements that were “reliable” and “perfectly trustworthy” even though a business records foundation had not been laid].) If ever there was such a docu ment, it is a New York State rap sheet generated, and based on information maintained by, the DCJS.
discussed Cited as authority (rule) Johnston v. Nakis (2×)
N.Y. Sup. Ct. · 2014 · confidence medium
(E lkaim v Elkaim, 176 AD2d 116, 119 [1st Dept 1991], citing Coco v Coco, 107 AD2d 21 [1985]; Reiner v Reiner, 100 AD2d 872 [1984].) Furthermore, the balance of the $112,028.68 HELOC debt must be repaid to Citizens Bank or plaintiff “in full before transferring title to the plaintiff’ (Ropiecki v Ropiecki, 94 AD3d 734, 735-736 [2d Dept 2012]), and within 45 days of service of this court’s decision and order.
discussed Cited as authority (rule) In re Kadyn J.
N.Y. App. Div. · 2013 · signal: cf. · confidence medium
We must therefore “find the admission of these records to have been in error if we are to give effect to the clear and unambiguous intention of the [Legislature” (id. at 755-756; cf. Elkaim v Elkaim, 176 AD2d 116, 117 [1991], lv dismissed 78 NY2d 1072 [1991]; see generally McKinney’s Cons Laws of NY, Book 1, Statutes §§ 76, 92).
discussed Cited as authority (rule) In re Kadyn J.
N.Y. App. Div. · 2013 · signal: cf. · confidence medium
We must therefore “find the admission of these records to have been in error if we are to give effect to the clear and unambiguous intention of the [Legislature” (id. at 755-756; cf. Elkaim v Elkaim, 176 AD2d 116, 117 [1991], lv dismissed 78 NY2d 1072 [1991]; see generally McKinney’s Cons Laws of NY, Book 1, Statutes §§ 76, 92).
discussed Cited as authority (rule) Questel v. Questel
N.Y. Sup. Ct. · 2013 · confidence medium
(See Elkaim v Elkaim, 176 AD2d 116, 118 [1st Dept 1991]; McInnis v McInnis, 23 AD3d 241, 242 [1st Dept 2005]; Azizo v Azizo, 51 AD3d 438, 440 [1st Dept 2008].) This trend indicates that the funds used to pay maintenance and/or carrying charges pendente lite, after commencement of a matrimonial proceeding, are not marital funds.
discussed Cited as authority (rule) IRB-Brasil Resseguros S.A. v. Eldorado Trading Corp.
N.Y. App. Div. · 2009 · confidence medium
In addition, a certified statement of account issued by Euroclear was admissible under the terms of the note, which provided that such record would be “conclusive evidence” as to the identity of any holder, and because it had sufficient indicia of trustworthiness (see Elkaim v Elkaim, 176 AD2d 116, 117 [1991], appeal and lv dismissed 78 NY2d 1072 [1991]).
discussed Cited as authority (rule) Merrill Lynch Business Financial Services Inc. v. Trataros Construction, Inc.
N.Y. App. Div. · 2006 · confidence medium
The amount of the indebtedness was established by the self-authenticating monthly statements of account sent to defendants and setting forth the balance due on the loan (see Elkaim v Elkaim, 176 AD2d 116, 117 [1991], appeal dismissed 78 NY2d 1072 [1991]).
discussed Cited as authority (rule) McInnis v. McInnis
N.Y. App. Div. · 2005 · confidence medium
As the motion court explained, the proceeds of the securities were no less marital property than the securities themselves, and, even if it were possible to trace which specific dollars from the proceeds were used to pay the pendente obligations, maintenance payments must be made from the payor’s income, not money derived from marital property (see Elkaim v Elkaim, 176 AD2d 116, 118 [1991], appeal dismissed 78 NY2d 1072 [1991]).
discussed Cited as authority (rule) Schiffmacher v. Schiffmacher
N.Y. App. Div. · 2005 · confidence medium
In the absence of an abuse of discretion, we will not disturb the court’s equitable distribution of that marital property (see Bossard v Bossard, 199 AD2d 971 [1993]; Elkaim v Elkaim, 176 AD2d 116, 119 [1991], appeal dismissed and lv dismissed 78 NY2d 1072 [1991]).
discussed Cited as authority (rule) Secretary of the Department of Housing & Urban Development v. Torres
N.Y. App. Term. · 2003 · confidence medium
Accepting the record without such foundation testimony, the court, in effect, took judicial notice, by which records may be admitted without foundation testimony where “so patently trustworthy as to be self-authenticating” (People v Kennedy, 68 NY2d 569 , 577 n 4 [1986]; Elkaim v Elkaim, 176 AD2d 116, 117 [1991]).
discussed Cited "see" People v. Ramos
N.Y. App. Div. · 2009 · signal: see · confidence high
Judicial notice may provide a basis for admitting business records when the records proffered are “so patently trustworthy as to be self-authenticating” (People v Kennedy, 68 NY2d 569 , 577 n 4 [1986]; see Elkaim v Elkaim, 176 AD2d 116, 117 [1991]; see also Weinstein-Korn-Miller, NY Civ Prac ¶ 4518.18 [5th ed]).
Retrieving the full opinion text from the archive…
Zohra-Georgette Elkaim
v.
Prosper-Paul Elkaim, Appellant-Respondent. Zohra-Georgette Elkaim v. Prosper-Paul Elkaim, Appellants-Respondents
Appellate Division of the Supreme Court of the State of New York.
Sep 12, 1991.
176 A.D.2d 116
Cited by 33 opinions  |  Published

—Judgment, Supreme Court, New York County (Walter Schackman, J.), entered October 31, 1990, which, inter alia, granted a divorce and distributed marital property, unanimously modified, on the law and the facts, to provide in the eleventh decretal paragraph that plaintiff is the owner of 25% of the shares of stock in Urban Vita Group, S.A., and to provide that plaintiff be awarded one[*117] half of the net income of 864 Broadway Corp. and Momart Discount Stores, Ltd. from the date of abandonment until the date of judgment, and one half of the fair market rental value of the apartment resided in by defendant during this period, and the matter remanded to the trial court for a finding as to the latter amounts in accordance with this memorandum, and is otherwise affirmed, without costs.

No error was committed by the trial court in admitting into evidence, without foundation testimony, records of defendant-husband’s accounts in European banks. To be sure, "[bjusiness records are not self-proving” (5 Weinstein-Korn-Miller, NY Civ Prac ¶ 4518.18), and "are customarily offered through a custodian or employee” of the business organization that created them (People v Kennedy, 68 NY2d 569, 577), "who can explain the record-keeping of his organization” (5 Weinstein-Korn-Miller, op. cit); but, it is also true "that judicial notice can provide a foundation for admitting the records of a particular business” (ibid.) when the records "are so patently trustworthy as to be self-authenticating” (People v Kennedy, supra, at 577, n 4), or, as one commentator has said about the similar Federal business records rule, "[a] foundation for admissibility may at times be predicated on judicial notice of the nature of the business and the nature of the records as observed by the court, particularly in the case of bank and similar statements.” (4 Weinstein, Evidence, at 803-178; see also, Federal Deposit Ins. Corp. v Staudinger, 797 F2d 908, 910.) Here, the bank records were procured by defendant himself (under compulsion of a court order) from the banks which supposedly created them, and thus their authenticity cannot be seriously challenged, and indeed is not challenged. They appear regular on their face, and in format conform to the type of statements with which banks customarily supply their customers on a monthly basis for the purpose of advising them of deposits, withdrawals and balances. No reasons are offered by defendant why these records should not be viewed as reliable and trustworthy, other than that they are technically hearsay and that no witness was called to testify that they were made in the regular course of the banks’ business at or about the time of the transactions they describe, but, in the circumstances, we do not consider this reason enough to exclude what appears to be perfectly trustworthy evidence.

Nor is there merit to defendant’s argument that the court double and triple counted the money in these bank accounts. If, as he asserts, the $300,000 he admittedly gave his son and the $400,000 he admittedly lent to his brother-in-law, moneys[*118] on which the court imposed a constructive trust, had their source in these bank accounts, a fair allocation of the burden of proof would require him to show as much. Certainly, there is nothing in the bank records themselves to corroborate the alleged withdrawals. Similarly, with respect to Urban Vita, the foreign corporation on which the court imposed a constructive trust, the record is simply insufficient to require a finding that defendant’s interest therein had its source in the foreign bank accounts.

We also find that plaintiff is entitled to a 50% share of the net income derived during the period from the date of abandonment until the date of judgment from the Manhattan real estate held by two corporations, i.e., 864 Broadway Corp. and Momart Discount Stores, Ltd. We reject defendant’s claim that the amount he paid plaintiff in maintenance pendente lite over these years should be deducted from her share of that income. Maintenance payments are to be paid from defendant’s income, not from income that rightfully should have been paid independently to plaintiff. While plaintiff claims that the amount she is due is $750,000, the record is unclear as to the actual amount of such income and we therefore remand to the trial court for a finding on this issue. In light of defendant’s history throughout this litigation of seeking to frustrate the ascertainment of the value of the various holdings constituting marital property and the allegations of possible tax fraud on his part, reliance solely on the documents prepared by him as the basis for a determination of the amount of that rental income would be inappropriate.

We note that while the aggregate corporate income must be computed from the corporations’ net income, rather than gross income, the compensation which was reportedly paid to defendant as a corporate officer and deducted from taxable income appears to have been excessive. If so, any excess over reasonable compensation should be included in the corporate net income. Furthermore, plaintiff should also receive one half of the fair market rental value of the apartment which defendant occupied rent free during this period. We therefore remand to the trial court for a finding as to the net income of 864 Broadway Corp. and Momart Discount Stores, Ltd., and the fair market rental value of defendant’s apartment, from the date of abandonment until the date of judgment and an award to plaintiff of half of the total amount.

The eleventh decretal paragraph of the judgment, indicating that plaintiff is to have a 50% share of Urban Vita, is amended to indicate that she receive a 25% share, consistent[*119] with the sixteenth decretal paragraph and the underlying memorandum decision.

Except as indicated above, the distribution of those assets determined to be marital property was a proper exercise of the trial court’s broad discretion in making equitable distributions of marital property (Lydick v Lydick, 130 AD2d 915, lv denied, 70 NY2d 607). The remaining assets were properly held the subject of a constructive trust as a remedy to defendant’s effort to place marital property out of plaintiff’s reach (see, e.g., Coco v Coco, 107 AD2d 21; Reiner v Reiner, 100 AD2d 872).

We have reviewed the remaining contentions of the parties, and find them to be without merit. Concur—Sullivan, J. P., Carro, Ellerin, Wallach and Ross, JJ.