What's happening
This bill allows statements made by an opposing party's agent or employee to be admitted as evidence, even if hearsay.
Why it matters
Expands admissible evidence in civil cases. By allowing statements made by an opposing party’s agent or employee (within the scope of their job, and while employed) to be admitted—even if they are hearsay—this bill broadens what evidence courts can consider, which could impact the outcome of many lawsuits.
Aligns New York law with federal standards. The change brings New York’s rules closer to the Federal Rules of Evidence, potentially making litigation more predictable and consistent for parties who operate in multiple jurisdictions.
Impacts how organizations handle internal communications. Businesses and other entities may need to review and train staff on communications, knowing that statements made by employees could be used as evidence in court, increasing organizational legal exposure.
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Who cares
Civil litigants and trial lawyers
The bill would prevent hearsay exclusion of statements offered against an opposing party when made by an authorized spokesperson or a qualifying agent or employee.
Employers and other principals
Their agents’ or employees’ statements could be used against them if made during the relationship and concerning a matter within its scope.
Civil court judges
They would apply the new evidentiary rule to all actions pending on or after the bill’s immediate effective date.
Headline styles
Allow Opposing Party Statements
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to judiciary
- Recommitted to rules
- Ordered to third reading cal.1710
- Referred to rules
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Let Opponent Statements In
Assembly Floor Calendar · Sponsor Jeffrey Dinowitz
Full text
1 pageUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
6335
2019-2020 Regular Sessions
IN SENATE
June 5, 2019
Introduced by Sen. HOYLMAN -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules
AN ACT to amend the civil practice law and rules, in relation to admissibility of an opposing party's statement
The People of the State of New York, represented in Senate and Assembly, 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.
LBD11641-01-9
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
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 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 4551, and provide that New York's hearsay exception shall follow the approach of Federal Rule of Evidence 801(d)(2) (D).
Read the full memo (869 words)
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 GumleyHaft, Inc., 82 AD3d 491 1ST DEPT 2011; Scherer v Golub Corp., 101 AD3d 1286
3D DEPT 2012; Huffer, "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 the Federal Rules 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 PLAINTIFFS 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 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 rule proposed in 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 statement would not be admissible against the employer where it concerned a matter 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 an 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.
2017-2018 LEGISLATIVE HISTORY:
S4868-A (Bonacic) 2017-COMMITTED TO RULES;2018-COMMITTED TO RULES A5919-A (Weinstein) 2017-PASSED A9009-A (Dinowitz) 2018-AMENDED ON 3"I RDG 9009A)
2015-2016 LEGISLATIVE HISTORY:
S7312 (BONACIC) 2016-COMMITTED TO RULES A7320 (WEINSTEIN) 2015-PASSED; 2016-REFERRED TO JUDICIARY
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.