Tuesday, January 4, 2022

(New) NY CPLR § 4549 -- Admissibility of an Opposing Party's Statement

I've alerted you about Original Strength CIDA and the impending CIDA Light, but another new civil action-related provision was signed into law in New York on December 31, 2021 that will impact civil litigation in New York state courts. 

 Senate Bill S7093 amends the New York state court rules of evidence by adding CPLR § 4549 to permit the admission of an opposing party's statement if made by an agent or employee made within the scope of that relationship and during the existence of that relationship. 

 CPLR § 4549 reads:
§ 4549. Admissibility of an opposing party's statement. A statement offered against an opposing party shall not be excluded from evidence as hearsay if made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the existence of that relationship. 
The Senate sponsor's memo explained: 
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation if his Advisory Committee on Civil Practice. 

This measure would relax the common law exclusion of the hearsay statement of a party's agent or employee, provided that the statement was on a matter within the scope of that employment or agency relationship, and made during the existence of the relationship. The measure would add a new CPLR 4549, and cause New York's hearsay exception to follow the approach of Federal Rule of Evidence 801(d)(2)(D). 

The measure is intended to change the extent of authority that a proponent must show in order to make the hearsay statement of an opposing party's agent or employee admissible. While under current law it appears clear that a hearsay statement will be admissible if there was actual authority to speak on behalf of the party, such authority often may be shown only by implication in light of the circumstances of the employment or agency relationship. In practice, this tends to limit 'speaking authority' to only the high levels of management. 

Professor Michael J. Hutter has analyzed several Appellate Division cases that take a very strict view of the predicate proof for speaking authority, and these cases indicate that an employee or agent who is not in charge of the business will have no implied authority to speak on behalf of the employer -- even if the statement made relates to an activity the person was charged to undertake. Instead, the proponent of the hearsay statement may need to make the difficult showing of express authority to speak on behalf of the employer. See Boyce v Gumley-Haft, Inc., 82 AD3d 491 (1st Dept 2011); Scherer v Golub Corp., 101 AD3d 1286 (3d Dept 2012); Hutter, "Speaking Agent Hearsay Exception: Time to Clarify, if Not Abandon," New York Law Journal, June 6, 2013, Pg. 3, col. 1, Vol. 249, No. 108. 

We believe a strict requirement to demonstrate such authority to speak may exclude reliable proof of an event, even though the employer as a party might not be treated unfairly by admissibility, either because the statement is true and made by a person with relevant knowledge, or because the employer is able to introduce other proof in opposition to the implications of the hearsay statement. As noted above, the current strict requirement to show speaking authority is contrary to Federal Rule of Evidence. See Barker and Alexander, Evidence in New York State and Federal Courts (2d ed.) 8:26, p. 148. 

We further believe that the rule is unlikely to change without legislative action. (See, Loschiavo v Port Auth. of New York & New Jersey, 58 NY2d 1040, 1041 (1983) ("We decline plaintiff's invitation to change this well-settled, albeit widely criticized rule of evidence but note, in this connection, that a proposal for modification of the hearsay rule in this state in now before the legislature"). 

An example of statements excluded under the current rule include an employee-driver's admissions of negligence, unless the driver was authorized by the employer to speak about the subject accident. In Schner v Simpson, (286 AD 716, 718 [1st Dept 1955]), an employee's statement "I am sorry that I knocked you down, but I think you will be able to get up" was held inadmissible on the ground that "[g]enerally speaking, employment does not carry authority to make either declarations or admissions."(See, also, Jankowski v Borden's Condensed Milk Co., 176 AD 453 [2d Dept 1917] [Driver's statement that it was his fault held not admissible]; and Raczes v Home, 68 AD3d 1521, 1522-1523 [3d Dept 2009] [Maintenance worker's statement: "This is the third time that I fixed this railing and I'm getting sick of it", not competent to establish notice on the part of employer]). 

However, such employee statements generally are admissible in Federal court and would be admissible under this measure. (See Corley v Burger King Corp., 56 F3d 709, 710 [5th Cir 1995]; Martin v Savage Truck Line, 121 F Supp 417, 419 [DDC 1954]). On the other hand, an employee's statement would not be admissible against the employer where it concerned a matter that was not within the employee's scope of employment. (See, e.g., Wilkinson v Carnival Cruise Lines, Inc., 920 F2d 1560 [11th Cir 1991]; Hill v Spiegel, Inc., 708 F2d 233, 237 [6th Cir 1983]). 

We believe that the Federal approach is an improvement over the current state of New York decisional law, and that trial judges will exercise appropriate discretion to exclude such hearsay evidence when there is inadequate foundation or indicia of reliability.
Be careful corporate defendants. If one of your employees or agents makes a statement "on a matter within the scope of that relationship and during the existence of that relationship", the statement now may be admissible in New York state court actions under CPLR § 4549. 

For example, if an independent adjuster says or writes something about a claim they are handling for an insurer... 

#nonhearsay #evidence #civillitigation

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