Can the statements of a defendant corporation's former CEO in a deposition that was taken after he left the company qualify for the party admission exception to hearsay under New York evidence law?

(3) Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(4) A statement is not hearsay if:

(i) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

(a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or

(b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or

(c) one of identification of a person made after perceiving the person.

(ii) Admission by party-opponent. The statement is offered against a party and is:

(a) the party's own statement in either the party's individual or representative capacity; or

(b) a statement of which the party has manifested the party's adoption or belief in its truth; or

(c) a statement by a person authorized by the party to make a statement concerning the subject; or

(d) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment of the agent or servant, made during the existence of the relationship; or

(e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

[...] In a civil action the admissions by a party of any fact material to the issue are always compepetent evidence against him, wherever, whenever, or to whomsoever made. Cook v. Barr, 44 N. Y. 156; Whiton v. Snyder, 88 N. Y. 306; Eisenlord v. Clum, 126 N Y. 559, 27 N. E. 1024; Hutchins v. Van Vechten, 140 N. Y. 118, 35 N. E. 446; Owen v. Cawley, 36 N. Y. 600. The theory upon which this class of evidence is held to be competent is that it is highly improbable that a party will admit or state anything against himself or against his own interest unless it is true. As the admissions testified to by the stenographer were of facts and circumstances which were material to the issue in this action, they were clearly competent, although not conclusive, evidence of the facts admitted. We find no error in the admission of this evidence, and, as no

[54 N.E. 741]

other questions are raised that we have jurisdiction to review, our conclusion is that the judgment should be affirmed. The judgment should be affirmed, with costs. All concur, except PARKER, C.J., not voting, and O'BRIEN, J., dissenting. Judgment affirmed.

Initially, Silver Stone's owner and Amsterdam's project manager's testimonies contain hearsay, as they both rely on plaintiff's statements for their truth. Hearsay evidence alone is insufficient to warrant denial of a summary judgment motion "where it is the only evidence upon which the opposition to summary judgment is predicated" (Narvaez v NYRAC, 290 AD2d 400, 401 [1^st Dept 2002]). Nonetheless, as is applicable here, plaintiff's statements are admissible as party admissions, an exception to the hearsay rule (Jerome Prince, Richardson on Evidence § 8-206, at 512 [Farrell 11th ed 1995] ["If a party makes an admission, it is receivable even though knowledge of the fact was derived wholly from hearsay"], citing Reed v McCord, 160 NY 330, 341 [1899] ["admissions by a party of any fact material to the issue are always competent evidence against him, wherever,

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whenever or to whomsoever made"]; see also Vendette v Feinberg, 125 AD2d 960, 960 [4th Dept 1986] [a party admission "constitutes evidence in admissible form necessary to defeat a motion for summary judgment"). Accordingly, Silver Stone's owner and Amsterdam project manager's testimony are admissible and may be considered in opposition to the instant motion.

We agree with the majority at the Appellate Division that the trial court, in excluding the testimony offered by plaintiff, properly applied this State's current hearsay rule. Pursuant to this rule, the hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority (Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 8, 315 N.E.2d 751, 358 N.Y.S.2d 685; Spett v. President Monroe Bldg. & Mfg. Corp., 19 N.Y.2d 203, 206, 278 N.Y.S.2d 826, 225 N.E.2d 527). 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 (A Code of Evidence for the State of New York, rule 803, subd. [b], par. [4] [submitted to the 1982 session of the Legislature]).

The moving defendants argue that Dr. Fitterman's alleged statement that Lucille Stack "kind of slipped through the cracks" is inadmissible hearsay. Further, the moving defendants contend that Dr. Fitterman's alleged statement does not fall within the party admission exception to the hearsay rule because Dr. Fitterman was not a speaking agent.

In opposition, the plaintiffs claim that Dr. Fitterman was a speaking agent and his statement was made within the scope of his authority to consult with his patient concerning her treatment history. Thus, his statement falls within the speaking agent exception to the hearsay rule.

The hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule where "the making of the statement is an activity within the scope of his authority" (Loschiavo v Port Auth. of New York & New Jersey, 58 N.Y.2d 1040, 1041).

The exception requires that: (a) the making of the statement is an activity within the scope of the agent's authority; and (2) the statements were made in the course of business or transaction for which the agent was employed (see Loschiavo, supra; Candela v City of New York, 8 A.D.3d 45, 47 [1^st Dept. 2004]; Navedo v 250 Willis Ave. Supermarket, 290 A.D.2d 246 [1^st Dept. 2002]). The burden is on the proponent of such testimony to establish its admissibility (see, Tyrell v Wal Mart Stores, 97 N.Y.2d 650, 652).

Plaintiff contends that Defendant's former City Engineer, Jeffrey Skurka, acknowledged during his deposition that Plaintiff had substantially completed the Project sometime before March 8, 2012. However, as of the date of his deposition on May 14, 2013, Mr. Skurka was no longer employed by Defendant, meaning that his testimony cannot be used as a statement against Defendant's interests (Loschiavo v. Port Authority of New York, 58 N.Y.2d 1040 [1983] [employee's statement is admissible against employer under the admissions exception to the hearsay rule “only if the making of the statement is an activity within the scope of his authority”]).³ Moreover, approximately one month later, Mr. Skurka filed a notice of claim against Defendant, which may impact the reliability of his testimony (Thompson v. Korn, 48 A.D.2d 1007 [4th Dept 1975]; R & R Candy Co., Inc. v. City of New York, 216 A.D. 468 [1st Dept 1926]).

(d) Hearsay exceptions; declarant unavailable.

[...]

(2) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

(i) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by N.Y.S. Military Law, section 103.32 is admissible under this paragraph if such a record is a verbatim record. This subparagraph is subject to the limitations set forth in articles 49 and 50.

[...]

At common-law, former testimony was admissible as an exception to the hearsay rule, pending satisfaction of certain prerequisites. ³ As a threshold matter the former testimony must have been given under oath, there must have been an opportunity for cross-examination, and it is usually required that there be identity of parties and substantial similarity of subject matter. Then in order to be received at the subsequent proceeding, the declarant must be presently unavailable due to death, illness, or absence from the jurisdiction. See, e.g., Richardson (Prince, 10th Ed.) Evidence, § 277; Fisch, New York Evidence, § 931 ff., McCormick, Evidence (1972) § 254 ff; 4 Weinstein's, Evidence, § 804. The theory is that such former testimony, sworn and given when there was a fair opportunity for cross-examination, is sufficiently reliable to be received into evidence when the declarant is unavailable. Moreover, it has been held to be constitutionally unoffensive to receive such prior testimony as evidence in a criminal trial. E.g. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); People v. Arroyo, 54 N.Y.2d 567, 446 N.Y.S.2d 910, 431 N.E.2d 271 (1982). As noted by Professor McCormick, "while the rather general practice is to speak loosely of unavailability of the witness the critical factor is actually the unavailability of the testimony ..." (Id. at § 253, p. 608; see also Weinstein, Id. at 804-35.)