BILL NUMBER: S4868A

SPONSOR: BONACIC
 
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 state-
ment 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 propo-
nent 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 employ-
              

ment 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 Clar-
ify, 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 legisla-
tive 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 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 declara-
tions 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 employ-
ment. (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 imme-
diately.

 
2017 LEGISLATIVE HISTORY:

Senate 4868 (Sen. Bonacic) (advanced to 3rd Rdg.)
Assembly 5919 (M. Of A. Weinstein) (advanced to 3rd Rdg., Cal. 347)

 
2015-2016 LEGISLATIVE HISTORY:

Senate 7312 (Sen. Bonacic) (committed to Rules)
Assembly 7320 (M. of A. Weinstein) (PASSED)