NY State Senate Bill 2021-S8297A

Senate Bill S8297A

2021-2022 Legislative Session

Relates to the admissibility of certain testimony and evidence by a person alleging discrimination

download bill text pdf

Archive: Last Bill Status - In Assembly Committee

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

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 02, 2022	referred to judiciary delivered to assembly passed senate
May 31, 2022	ordered to third reading cal.1660 committee discharged and committed to rules
May 24, 2022	print number 8297a
May 24, 2022	amend and recommit to judiciary
Feb 10, 2022	referred to judiciary

Votes

- Jun 2, 2022 - Floor Vote
  S8297A
  
  54
  
  Aye
  
  9
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 2, 2022
      
      aye (54)
      
      Addabbo Jr.
      
      Bailey
      
      Biaggi
      
      Breslin
      
      Brisport
      
      Brooks
      
      Brouk
      
      Cleare
      
      Comrie
      
      Cooney
      
      Felder
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Liu
      
      Mannion
      
      May
      
      Mayer
      
      Myrie
      
      O'Mara
      
      Oberacker
      
      Ortt
      
      Palumbo
      
      Parker
      
      Persaud
      
      Ramos
      
      Reichlin-Melnick
      
      Ritchie
      
      Rivera
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stec
      
      Stewart-Cousins
      
      Thomas
      
      Weik
      
      nay (9)
      
      Akshar
      
      Borrello
      
      Boyle
      
      Jordan
      
      Lanza
      
      Martucci
      
      Mattera
      
      Rath III
      
      Tedisco
  May 31, 2022 - Rules Committee Vote
  S8297A
  
  15
  
  Aye
  
  0
  
  Nay
  
  5
  
  Aye with Reservations
  
  1
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: May 31, 2022
      
      aye (15)
      
      Addabbo Jr.
      
      Bailey
      
      Biaggi
      
      Breslin
      
      Comrie
      
      Gallivan
      
      Gianaris
      
      Kennedy
      
      Krueger
      
      Liu
      
      Mayer
      
      Parker
      
      Savino
      
      Sepúlveda
      
      Stewart-Cousins
      
      aye wr (5)
      
      Boyle
      
      Griffo
      
      Lanza
      
      Ortt
      
      Ritchie
      
      absent (1)
      
      O'Mara

Bill Amendments

Original

A (Active)

co-Sponsors

View additional co-sponsors

2021-S8297 - Details

See Assembly Version of this Bill:: A9045
Current Committee:: Assembly Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add R4550, CPLR
Versions Introduced in 2023-2024 Legislative Session:: S2573, A1697

2021-S8297 - Summary

Permits the admissibility of testimony that a person reported acts of discrimination to another person in a civil trial under the human rights law, including the contents of such report.

2021-S8297 - Sponsor Memo

                                 
BILL NUMBER: S8297

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to permit-
ting certain testimony and evidence by a person alleging discrimination

 
PURPOSE OR GENERAL IDEA OF BILL:

To allow reports of employment discrimination made by a victim of such
discrimination to be admitted as evidence in a civil trial

 
SUMMARY OF PROVISIONS:

Section one adds a new rule 4514-a to the the Civil Practice Law and
Rules (CPLR) to provide that in a civil action, evidence that a party
alleging discrimination reported such discrimination to another person
may be reported as evidence to rehabilitate the testimony of the party
alleging discrimination. In order for such evidence to be admissible,
such report must have been made before the last adverse action being
complained of is taken, or promptly afterward. The judge shall take into

account the individual circumstances of each case and relevant context
when determining promptness. Rule 4514 is the section of CPLR dealing
with impeachment of a witness by prior inconsistent statement.

Section two adds the same language for a new rule 4549 under Article 45
of the CPLR. This section provides that evidence of a report may be
admitted under these circumstances despite the inadmissibility of hear-
say in civil trials.

Section three provides that this act shall take effect immediately.

 
JUSTIFICATION:

In criminal and civil trials in the state of New York, hearsay is gener-
ally unable to serve as evidence unless it falls within one of a few
noted exceptions. In criminal cases of rape and sexual assault, for
example, New York courts have established a common law exception to the
hearsay ban by which evidence that a victim promptly reported the inci-
dent to another person such as a friend or family member may be admitted
to corroborate the victim's claim that such incident occurred. This
rule, known as the "prompt outcry" exception to the hearsay ban, was
created in recognition of the fact that "prompt complaint (is) 'natural'
conduct on the part of (a victim), and failure to complain therefore
(casts) doubt on the complainant's veracity; outcry evidence was consid-
ered necessary to rebut the adverse inference a jury would inevitably
draw if not presented with proof of a timely complaint" (People v Rice,
75 N.Y.2d 929, 931 (1990)). Prompt outcry evidence is subject to the
same analysis of reliability as other exceptions to the hearsay ban, and
serves as an important evidentiary tool to help bring sexual offenders
to justice in situations where other evidence might be difficult to come
by.

This bill extends the same logic behind the prompt outcry exception in
criminal cases to civil cases as well. While courts have begun to recog-
nize the viability of prompt outcry in non-criminal cases, it has yet to
be explicitly extended to civil trials of sexual harassment and other
types of discrimination. Without a statutory right to admit this kind of
evidence at a civil trial, victims of harassment are faced with a severe
disadvantage: they are both unable to submit evidence that they reported
the harassment to another person, and unable to contest any doubt
surfacing in a jury's mind when no evidence of a contemporaneous
complaint is presented.

This bill counters this disadvantage by allowing victims to submit
evidence of a report of discrimination in a civil trial, so long as such
report was made before the last adverse action being complained of was
taken or promptly thereafter. Judges shall be able to account for the
individual circumstances of the case when determining "promptness,"
which can be a relative concept. By explicitly allowing this crucial
detail as evidence in civil trials, New York can help victims of work-
place discrimination seek justice while aligning evidentiary rules in
similar criminal and civil cases. This update to the rules governing our
state's civil trials is the least we can do for victims seeking recom-
pense for the discrimination they have faced. Counting reports of
misconduct as admissible evidence is a critical step toward ensuring
survivors' stories are heard and believed, which is why courts long ago
established the prompt outcry exception to the hearsay ban in cases of
sexual assault. Extending this admissibility to cases of sexual harass-
ment is the next logical step.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
Immediate

2021-S8297 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8297
 
                             I N  S E N A T E
 
                             February 10, 2022
                                ___________
 
 Introduced by Sen. GOUNARDES -- 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 permit-
   ting  certain  testimony  and  evidence by a person alleging discrimi-
   nation
 
   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 rule 4514-a to read as follows:
   RULE 4514-A. ADMISSIBILITY OF ALLEGATIONS OF DISCRIMINATION. (A)  WHEN
 USED  IN THIS RULE, "DISCRIMINATION" SHALL MEAN ANY UNLAWFUL DISCRIMINA-
 TORY PRACTICE PURSUANT TO ARTICLE FIFTEEN OF THE EXECUTIVE LAW,  INCLUD-
 ING  UNLAWFUL  DISCRIMINATORY  PRACTICES  BASED  ON  RACE, CREED, COLOR,
 NATIONAL ORIGIN, SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR  EXPRESSION,
 MILITARY STATUS, AGE, SEX, MARITAL STATUS, CHILDBEARING POTENTIAL, DISA-
 BILITY, OR FAMILIAL STATUS.
   (B)  IN A CIVIL ACTION, AT ANY TRIAL OR HEARING, EVIDENCE THAT A PARTY
 ALLEGING DISCRIMINATION, INCLUDING BUT NOT LIMITED TO SEXUAL  HARASSMENT
 AND/OR  MISCONDUCT, REPORTED SUCH DISCRIMINATION OR FACTS GIVING RISE TO
 AN  INFERENCE  OF  SUCH  DISCRIMINATION  TO  ANOTHER  PERSON,  INCLUDING
 EVIDENCE  CONCERNING  THE CONTENTS OF SUCH REPORT OR STATEMENT OF FACTS,
 MAY BE ADMITTED TO REHABILITATE THE  TESTIMONY  OF  THE  PARTY  CLAIMING
 DISCRIMINATION  TO  PROVE  THE  TRUTH THEREOF WHENEVER THE ADVERSE PARTY
 ARGUES OR IMPLIES THAT THE TESTIMONY OF  THE  PARTY  CLAIMING  DISCRIMI-
 NATION IS UNTRUE, INCREDIBLE, OR UNRELIABLE.
   (C)  FOR  EVIDENCE  OF A REPORT OR STATEMENT OF FACTS TO BE ADMISSIBLE
 UNDER THIS RULE, SUCH REPORT OR STATEMENT MUST BE MADE BEFORE  THE  LAST
 ADVERSE  ACTION COMPLAINED OF IS TAKEN, OR PROMPTLY AFTER SUCH ACTION IS
 TAKEN.  PROMPTNESS SHALL BE DETERMINED BY ALL FACTS  AND  CIRCUMSTANCES,
 GIVING  DUE  REGARD TO THE SENSITIVITY OF THE SUBJECT MATTER, THE MENTAL
 STATE OF THE PARTY ALLEGING DISCRIMINATION, OR ANY OTHER RELEVANT INFOR-
 MATION.
   § 2. The civil practice law and rules is amended by adding a new  rule
 4549 to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13236-05-1
 S. 8297                             2
 
   RULE  4549.  ADMISSIBILITY  OF  ALLEGATIONS OF DISCRIMINATION; HEARSAY
 EXCEPTION.  (A) WHEN USED IN THIS RULE, "DISCRIMINATION" SHALL MEAN  ANY
 UNLAWFUL  DISCRIMINATORY  PRACTICE  PURSUANT  TO  ARTICLE FIFTEEN OF THE
 EXECUTIVE LAW, INCLUDING  UNLAWFUL  DISCRIMINATORY  PRACTICES  BASED  ON
 RACE, CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIENTATION, GENDER IDENTITY
 OR  EXPRESSION,  MILITARY STATUS, AGE, SEX, MARITAL STATUS, CHILDBEARING
 POTENTIAL, DISABILITY, OR FAMILIAL STATUS.
   (B) IN A CIVIL ACTION, AT THE TRIAL OR UPON THE HEARING OF A MOTION OR
 AN INTERLOCUTORY PROCEEDING, EVIDENCE THAT A  PARTY  ALLEGING  DISCRIMI-
 NATION,  INCLUDING  BUT  NOT LIMITED TO SEXUAL HARASSMENT AND/OR MISCON-
 DUCT, REPORTED SUCH DISCRIMINATION OR FACTS GIVING RISE TO AN  INFERENCE
 OF  SUCH DISCRIMINATION TO ANOTHER PERSON, INCLUDING EVIDENCE CONCERNING
 THE CONTENTS OF SUCH REPORT OR STATEMENT OF FACTS, MAY BE ADMITTED AS AN
 EXCEPTION TO THE INADMISSIBILITY OF HEARSAY TO  SUPPORT  THE  ALLEGATION
 THAT DISCRIMINATION OCCURRED.
   (C)  FOR EVIDENCE OF A REPORT OR STATEMENT TO BE ADMISSIBLE UNDER THIS
 RULE, SUCH REPORT OR STATEMENT MUST  HAVE  BEEN  MADE  BEFORE  THE  LAST
 ADVERSE  ACTION COMPLAINED OF IS TAKEN, OR PROMPTLY AFTER SUCH ACTION IS
 TAKEN.  PROMPTNESS SHALL BE DETERMINED BY ALL FACTS  AND  CIRCUMSTANCES,
 GIVING  DUE  REGARD TO THE SENSITIVITY OF THE SUBJECT MATTER, THE MENTAL
 STATE OF THE PARTY ALLEGING DISCRIMINATION, OR ANY OTHER RELEVANT INFOR-
 MATION.
   (D) THE PROPONENT OF SUCH EVIDENCE HAS  THE  BURDEN  OF  DEMONSTRATING
 THAT  THE REPORTING WAS MADE UNDER CIRCUMSTANCES WHICH RENDER IT REASON-
 ABLY RELIABLE.
   (E) THIS RULE IS ONLY APPLICABLE IN CIVIL MATTERS AND SHALL NOT  APPLY
 IN CRIMINAL PROCEEDINGS.
   § 3. This act shall take effect immediately.

co-Sponsors

View additional co-sponsors

2021-S8297A (ACTIVE) - Details

See Assembly Version of this Bill:: A9045
Current Committee:: Assembly Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add R4550, CPLR
Versions Introduced in 2023-2024 Legislative Session:: S2573, A1697

2021-S8297A (ACTIVE) - Summary

Permits the admissibility of testimony that a person reported acts of discrimination to another person in a civil trial under the human rights law, including the contents of such report.

2021-S8297A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8297A

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to permit-
ting certain testimony and evidence by a person alleging discrimination

 
PURPOSE OR GENERAL IDEA OF BILL:

To allow reports of employment discrimination made by a victim of such
discrimination to be admitted as evidence in a civil trial

 
SUMMARY OF PROVISIONS:

Section one adds a new rule 4550 to the the Civil Practice Law and Rules
(CPLR) to provide that in a civil action, evidence that a party alleging
discrimination reported such discrimination to another person may be
reported as evidence. In order for such evidence to be admissible, such
report must have been made before the last adverse action being
complained of is taken, or promptly afterward. The judge shall take into
account the individual circumstances of each case and relevant context

when determining promptness.

Section two provides that this act shall take effect immediately.

 
JUSTIFICATION:

In criminal and civil trials in the state of New York, hearsay is gener-
ally unable to serve as evidence unless it falls within one of a few
noted exceptions. In criminal cases of rape and sexual assault, for
example, New York courts have established a common law exception to the
hearsay ban by which evidence that a victim promptly reported the inci-
dent to another person such as a friend or family member may be admitted
to corroborate the victim's claim that such incident occurred. This
rule, known as the "prompt outcry" exception to the hearsay ban, was
created in recognition of the fact that "prompt complaint (is) 'natural'
conduct on the part of (a victim), and failure to complain therefore
(casts) doubt on the complainant's veracity; outcry evidence was consid-
ered necessary to rebut the adverse inference a jury would inevitably
draw if not presented with proof of a timely complaint" (People v Rice,
75 N.Y.2d 929, 931 (1990)). Promptoutcry evidence is subject to the same
analysis of reliability as other exceptions to the hearsay ban, and
serves as an important evidentiary tool to help bring sexual offenders
to justice in situations where other evidence might be difficult to come
by.

This bill extends the same logic behind the prompt outcry exception in
criminal cases to civil cases as well. While courts have begun to recog-
nize the viability of prompt outcry in non-criminal cases, it has yet to
be explicitly extended to civil trials of sexual harassment and other
types of discrimination. Without a statutory right to admit this kind of
evidence at a civil trial, victims of harassment are faced with a severe
disadvantage: they are both unable to submit evidence that they reported
the harassment to another person, and unable to contest any doubt
surfacing in a jury's mind when no evidence of a contemporaneous
complaint is presented.


This bill counters this disadvantage by allowing victims to submit
evidence of a report of discrimination in a civil trial, so long as such
report was made before the last adverse action being complained of was
taken or promptly thereafter. Judges shall be able to account for the
individual circumstances of the case when determining "promptness,"
which can be a relative concept.. By explicitly allowing this crucial
detail as evidence in civil trials, New York can help victims of work-
place discrimination seek justice while aligning evidentiary rules in
similar criminal and civil cases. This update to the rules governing our
state's civil trials is the least we can do for victims seeking recom-
pense for the discrimination they have faced. Counting reports of
misconduct as admissible evidence is a critical step toward ensuring
survivors' stories are heard and believed, which is why courts long ago
established the prompt outcry exception to the hearsay ban in cases of
sexual assault. Extending this admissibility to cases of sexual harass-
ment is the next logical step.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
Immediate

2021-S8297A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8297--A
 
                             I N  S E N A T E
 
                             February 10, 2022
                                ___________
 
 Introduced  by  Sens.  GOUNARDES,  BIAGGI, KRUEGER, LIU, MYRIE, RAMOS --
   read twice and ordered printed, and when printed to  be  committed  to
   the  Committee  on  Judiciary  --  committee discharged, bill amended,
   ordered reprinted as amended and recommitted to said committee
 
 AN ACT to amend the civil practice law and rules, in relation to permit-
   ting certain testimony and evidence by  a  person  alleging  discrimi-
   nation
 
   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 rule 4550 to read as follows:
   RULE  4550.  ADMISSIBILITY  OF  ALLEGATIONS OF DISCRIMINATION; HEARSAY
 EXCEPTION.  (A) WHEN USED IN THIS RULE, "DISCRIMINATION" SHALL MEAN  ANY
 UNLAWFUL  DISCRIMINATORY  PRACTICE  PURSUANT  TO  ARTICLE FIFTEEN OF THE
 EXECUTIVE LAW, INCLUDING  UNLAWFUL  DISCRIMINATORY  PRACTICES  BASED  ON
 RACE, CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIENTATION, GENDER IDENTITY
 OR  EXPRESSION,  MILITARY STATUS, AGE, SEX, MARITAL STATUS, CHILDBEARING
 POTENTIAL, DISABILITY, OR FAMILIAL STATUS.
   (B) IN A CIVIL ACTION, AT THE TRIAL OR UPON THE HEARING OF A MOTION OR
 AN INTERLOCUTORY PROCEEDING, EVIDENCE THAT A  PARTY  ALLEGING  DISCRIMI-
 NATION,  INCLUDING  BUT  NOT LIMITED TO SEXUAL HARASSMENT AND/OR MISCON-
 DUCT, REPORTED SUCH DISCRIMINATION OR FACTS GIVING RISE TO AN  INFERENCE
 OF  SUCH DISCRIMINATION TO ANOTHER PERSON, INCLUDING EVIDENCE CONCERNING
 THE CONTENTS OF SUCH REPORT OR STATEMENT OF FACTS, MAY BE ADMITTED AS AN
 EXCEPTION TO THE INADMISSIBILITY OF HEARSAY TO  SUPPORT  THE  ALLEGATION
 THAT DISCRIMINATION OCCURRED.
   (C)  FOR EVIDENCE OF A REPORT OR STATEMENT TO BE ADMISSIBLE UNDER THIS
 RULE, SUCH REPORT OR STATEMENT MUST  HAVE  BEEN  MADE  BEFORE  THE  LAST
 ADVERSE  ACTION COMPLAINED OF IS TAKEN, OR PROMPTLY AFTER SUCH ACTION IS
 TAKEN.  PROMPTNESS SHALL BE DETERMINED BY ALL FACTS  AND  CIRCUMSTANCES,
 GIVING  DUE  REGARD TO THE SENSITIVITY OF THE SUBJECT MATTER, THE MENTAL
 STATE OF THE PARTY ALLEGING DISCRIMINATION, OR ANY OTHER RELEVANT INFOR-
 MATION.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13236-06-2

 S. 8297--A                          2
 
   (D) THE PROPONENT OF SUCH EVIDENCE HAS  THE  BURDEN  OF  DEMONSTRATING
 THAT  THE REPORTING WAS MADE UNDER CIRCUMSTANCES WHICH RENDER IT REASON-
 ABLY RELIABLE.
   (E)  THIS RULE IS ONLY APPLICABLE IN CIVIL MATTERS AND SHALL NOT APPLY
 IN CRIMINAL PROCEEDINGS.
   § 2. This act shall take effect immediately.

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Senate Bill S8297A

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Sponsored By

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

co-Sponsors

2021-S8297 - Details

2021-S8297 - Summary

2021-S8297 - Sponsor Memo

2021-S8297 - Bill Text download pdf

co-Sponsors

2021-S8297A (ACTIVE) - Details

2021-S8297A (ACTIVE) - Summary

2021-S8297A (ACTIVE) - Sponsor Memo

2021-S8297A (ACTIVE) - Bill Text download pdf

Comments