NY State Senate Bill S7093

Archive: Last Bill Status - Signed by Governor

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed by Governor

Your Voice

Please enter your contact information

First Name *

Last Name *

Email Address *

A valid email address is required.

Home address search or enter your address manually *

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Leave this field blank

Actions

view actions (12)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Dec 31, 2021	signed chap.833
Dec 20, 2021	delivered to governor
Jun 10, 2021	returned to senate passed assembly ordered to third reading rules cal.796 substituted for a8040 referred to ways and means delivered to assembly passed senate ordered to third reading cal.1732 committee discharged and committed to rules
May 28, 2021	referred to judiciary

Votes

S7093 (ACTIVE) - Details

See Assembly Version of this Bill:: A8040
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add §4549, CPLR
Versions Introduced in 2019-2020 Legislative Session:: S6335, A7599

S7093 (ACTIVE) - Summary

Amends the rules of evidence 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.

S7093 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S7093

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to admis-
sibility 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 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.

 
2019-20 LEGISLATIVE HISTORY:
A7599 (Dinowitz) 
2019 REPORTED TO RULES; 2020 ORDERED TO 3"' RDG CAL
281
S6335 (Hoylman) 
2019 COMMITTED TO RULES; 2020 REFERRED TO JUDICIARY

 
2017-18 LEGISLATIVE HISTORY:
S4868-A (Bonacic) 
2017-COMMITTED TO RULES; 2018-COMMITTED TO RULES
A5919-A (Weinstein) 
2017-PASSED
A9009-A (Dinowitz) 
2018-AMENDED ON 3RD RDG 9009A

 
2015-16 LEGISLATIVE HISTORY:
S7312 (Bonacic) 
2016-COMMITTED TO RULES
A7320 (Weinstein) 
2015-PASSED; 2016-REFERRED TO JUDICIARY

S7093 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7093
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               May 28, 2021
                                ___________
 
 Introduced  by Sen. HOYLMAN -- (at request of the Office of Court Admin-
   istration) -- read twice and ordered printed, and when printed  to  be
   committed to the Committee on Judiciary
 
 AN  ACT to amend the civil practice law and rules, in relation to admis-
   sibility of an opposing party's statement

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil practice law and rules is amended by adding a new
 section 4549 to read as follows:
   §  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.
   §  2.  This  act  shall take effect immediately and shall apply to all
 actions pending on or after its effective date.
 
 
 
 

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10789-01-1

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

The New York State Senate

senate Bill S7093

Sponsored By

Archive: Last Bill Status - Signed by Governor

Your Voice

Actions

Votes

Jun 10, 2021 - floor Vote

Floor Vote: Jun 10, 2021

Jun 10, 2021 - Rules committee Vote

Rules Committee Vote: Jun 10, 2021

S7093 (ACTIVE) - Details

S7093 (ACTIVE) - Summary

S7093 (ACTIVE) - Sponsor Memo

S7093 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S7093

Share this bill

Sponsored By

Brad Hoylman-Sigal

Archive: Last Bill Status - Signed by Governor

Your Voice

Actions

Votes

Jun 10, 2021 - floor Vote

Floor Vote: Jun 10, 2021

Jun 10, 2021 - Rules committee Vote

Rules Committee Vote: Jun 10, 2021

S7093 (ACTIVE) - Details

S7093 (ACTIVE) - Summary

S7093 (ACTIVE) - Sponsor Memo

S7093 (ACTIVE) - Bill Text download pdf

Comments