My May 27th Court Denies Summary Judgment Motion Based on Insureds' Recorded Statements post generated many thoughtful comments on how an insured's recorded statement might better have been presented to avoid being characterized as inadmissible hearsay and permit its introduction and use on Metropolitan's motion as admissible evidence. In case you did not click on and read those comments, I'm reprinting that thread in this separate post. In support of its motion for summary judgment seeking a declaration that its named insured and insured driver had breached the policy's cooperation clause by lying to Metropolitan in their recorded statements about whether the driver had the owner/named insured's permission to use the insured vehicle, Metropolitan submitted those recorded statements to prove the misrepresentations and non-cooperation. The decision does not indicate in what form Metropolitan submitted the recorded statements, although it was most likely via typed transcripts of those statements. Metropolitan argued that the statements were admissible under CPLR 4518 as business records and, thus, excepted from the hearsay rule. The court disagreed.
The commenters observed:
The Court's decision is dead on regarding business records.
Secondly anonymous makes a technical point that at first blush might cause one to leap for it. But if the truth was the recorded statement than it was made for the truth of the matter asserted. If the lie was the recorded statement we run into the issue of what constitutes the "truth of the matter asserted." It is broader than anonymous opines. This is not a case where a prior inconsistent statement is being offered on cross to demonstrate just that -- inconsistency. And it is not a case as it would seem where we are offering a statement to show a state of mind.
The statement was a lie. It is being offered to demonstrate a lie which is non-cooperation. If the same statement were introduced in opposition to a motion for summary judgment than it would be admissible as non-hearsay because it would merely demonstrate inconsistency. Here the lie is being offered to show a lie and most courts would conclude that this is hearsay. To hold otherwise would open the door to a host of out of court statements rendering every case the equivalent of a no fault farce.
Perhaps to refine anonymous' argument it would have been better to classify the statement as a verbal act -- like saying I accept in a contract action. The statement "I don't know who was driving" was a verbal act of non-cooperation and therefore not hearsay. The equivalent of a refusal to answer.
But that brings us to hearsay layers and authentication. An admission would cure one layer. I assume that the recorded statement was transcribed. The transcript is another layer. It is another out of court statement as opposed to a person testifying IN COURT that a Party to the action said this or that. The plaintiff tried to get the transcript in as a business record. No go. If it were admitted as business record than the statement itself would have been an admission.
Hence Larry's EBT analysis. Under the CPLR if the party is given the opportunity to review his transcript the EBT can be used for almost anything.
I don't know the facts of the Tower case. Were the signed statements used to obtain summary judgment or defeat it.
Zuppa, although I understand your concern that the statement is being offered to prove a lie, that's not really correct. Presumably, the insurer has non-hearsay evidence to prove that this statement is, in fact, false. Thus, the necessity of first proving the statement was made (non-hearsay use), followed with admissible evidence proving the falsity of the statement.
An example: In a defamation case, the plaintiff offers the defamatory statement. Objection: hearsay. Response: the statement is not being offered to prove the truth of its content, but to show that it was made. Result: the statement is let in.
I absolutely know your argument but still stand by the fact that courts define what constitutes "the truth of the matter asserted" more broadly.
Your hearsay hypo is convincing but flawed. If a witness came into court and testified Defendant said "Zuppa is a hack" than we'd have an admission which overcomes the single layer of hearsay.
I am sorry but that is evidence. I didn't show up to court with a bag full of cocaine and intro it into evidence: "Here it is your honor." I had to establish chain of custody.
More on point when I introduced taped conversations from wiretaps I had to lay out a massive authentication from the monitoring through the sealing and the unsealing. Evidence is a lost art. It mi[ght] as well be lost since many courts do not even understand it.