Ancient Document Exception To Hearsay Rule Applied

Posted: January 2, 2026 / Written by: Jeffrey M. Eilender, Joshua Wurtzel, Samuel L. Butt, Thomas A. Kissane, Channing J. Turner / Categories Commercial, Evidence

Ancient Document Exception To Hearsay Rule Applied

On November 24 2025, Justice Joel M. Cohen found that the ancient document exception applied and defeated defendants’ hearsay objection to the document at issue in Greason v. Nahmad, Index No. 650646/2014. The Court explained:

Plaintiff has made a sufficient showing that the ancient documents exception to the hearsay rule applies to the Note. Under that exception, a record or document which is found to be more than 30 years of age and which is proven to have come from proper custody and is itself free from any indication of fraud or invalidity “proves itself”” (Tillman v Lincoln Warehouse Corp., 72 AD2d 40, 44 [1st Dept 1979]). Further, “[i]f the genuineness of an ancient document is established, it may be received to prove the truth of the facts that it recites” (id. at 45). As the Court of Appeals long ago observed, “[i]t is usually impossible to establish a very ancient possession of property by the testimony of persons having knowledge of the fact, and when a deed forming part of a chain of title is so ancient that there can be, in the nature of things, no living persons who can testify to acts of ownership by the grantor or grantee, it may be received in evidence without such proof.” (Greenleaf v Brooklyn, F. & C. I. R. Co., 132 NY 408, 414 [1892]). In the present context, the ancient document exception essentially relieves Plaintiff from having to prove the Note is a business record of the producing party because, due to the passage of 75 years since its creation, there are no witnesses available to provide an evidentiary foundation. [footnote omitted[.

The record indicates that the Note was part of the archives and files maintained by the Wildenstein entities, there is no indication of fraud or invalidity, and it is more than thirty years old, as it states it was filed in 1950 (not long after the conclusion of WWII). Plaintiff submits evidence from which the jury could conclude that the Note was written by Doris Koren while she was working as a secretary for Wildenstein & Co.; that Ms. Koren and George Wildenstein traveled to France in 1950; that it was a regular task of Ms. Koren to manage photographic materials and make notes on them; and that the Note remained in Wildenstein’s files (and the files of related entities) until being produced in this case. Therefore, there is evidence of “proper custody” and reliability. The jurors will hear the “foundation” evidence offered by Plaintiff regarding the Note, as well as any evidence tendered by Defendant to rebut it, which they can evaluate and decide what weight (if any) to give the Note at trial…

However, as discussed at oral argument, the Note cannot be offered as evidence that the Painting was stolen (there is no suggestion that the writer would have known that one way or the other), but instead at most that the “Stettiner family” in or around 1950 was claiming that the Painting was stolen and were looking for it in America. The Note may also be offered for the non-hearsay purpose of responding to Defendants’ affirmative defense that they “did not know, and with the exercise of reasonable care could not have known, of the Plaintiffs’ purported claim to the Painting” (NYSCEF 1820 ¶69).

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning evidentiary rules or hearsay.