NEW EVIDENCE RULE ON HEARSAY

Effective December 31, 2021, is CPLR 4549:

" § 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."

According to the Senate Bill:

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 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 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 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 GumleyHaf t,
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 " 
Generally
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 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 state-
ment 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 imme-
diately and apply to all actions pending on or after such effective
date.