BILL NUMBER:  S7312

 TITLE OF BILL :

An act to amend the civil practice law and rules, in relation to
admissibility of an opposing party's statement

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her 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 4551, 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. Huffer 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); Huffer, "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 plaintiffs 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 is 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 Horne, 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 the proposed rule. (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.

This measure, which would have no fiscal impact, would take effect
immediately.

 LEGISLATIVE HISTORY :

None. New proposal.