Michael J. Hutter
Michael J. Hutter ()

In my last column, I started a discussion of evidence decisions from the 2016-2017 Term of the Court of Appeals and the four Appellate Division departments which were important due to their practical impact upon the trial of civil and criminal cases and which might be otherwise overlooked by the bench and bar due to their less-heralded nature. Michael J. Hutter, “Notable Decisions From The 2016-2017 Term,” NYLJ, Aug. 3, 2017, p. 3, col. 3. This column is a continuation of that discussion, focusing on three decisions each of which have several practical takeaways.

‘Speaking Agent’ Hearsay Exception

New York’s “speaking agent” exception to the hearsay rule permits an out-of-court statement made by an employee or agent of a party to be admissible against the party if the statement is inconsistent with the party’s position in the proceeding and the employee or agent was authorized to make a statement concerning the matter involved. See Guide to New York Evidence Rule 8.03(1)(c) (Admissibility of Hearsay) (Guide).1  The fact that the employee or agent is authorized “to act” for the employer or principal is not enough; the employee or agent must be authorized to “speak.” See Michael J. Hutter, “‘Speaking Agent’ Hearsay Exception: Time to Clarify If Not Abandon,” NYLJ, June 6, 2013, p. 3, col. 3 (noting that New York law is contrary to Federal Rule of Evidence 801(d)(2)(D), which has no such speaking authority requirement). Two decisions addressed this rule, one directly and another indirectly.

In Weicht v. City of New York, 148 A.D.3d 551 (1st Dep’t 2017), plaintiff moved for partial summary judgment on liability on his Labor Law §240(1) claim, and defendants cross-moved for summary judgment dismissing that claim.  Plaintiff’s proof established that he was injured when the bottom of the ladder from which he was descending suddenly slipped out from under him, causing plaintiff to fall to the ground.  Based upon these facts, Supreme Court granted plaintiff’s motion and denied defendants’ motion; and the First Department affirmed. Id. at 551.

The facts which the court found to be determinative of defendants’ liability were established by plaintiff’s submission of a workers’ compensation report and a statement of the owner of the defendant corporation, the general contractor on the construction site, made in a report to OSHA, which statement detailed how plaintiff’s accident occurred.  The First Department held both submissions were admissible, the workers’ compensation report under the business records hearsay exception, CPLR 4518(a), and the statement in the OSHA report as “a vicarious admission of an employee.”  Id. at 552.  As to the latter, the court held the owner of the defendant corporation was authorized to speak on behalf of the corporation, and thus his statement was admissible under the speaking agent exception.

Notably, there was no proof that the corporation in fact gave the owner permission to speak on its behalf.  Upon what basis then was it concluded the owner was authorized to speak on behalf of defendant regarding how a construction worker on the jobsite was injured, an explanation that resulted in liability being imposed upon the corporation?  The requisite authority was implied from the status of the person making the statement, namely, he was the owner.  It is certainly beyond cavil that the owner of a corporation can speak on behalf of the corporation.  Finding implied authority based upon the speaker’s ownership of the corporation is consistent with prior Court of Appeals decisions concluding that the speaker had authority based on his or her full or extensive responsibility over the corporation’s entire operations or a major part of those operations. See, e.g., Booth v. Cleveland Rolling Mill Co., 74 N.Y. 15, 28 (1870) (vice-president); Stecher Lithographic Co. v. Iman, 175 N.Y. 124, 127 (1903) (“superintendent” who was in charge of party’s printing business); Spett v. President Monroe Bldg.  & Mfg., 19 N.Y.2d 203, 206 (1967) (“foreman” who exercised complete managerial responsibility).

To be sure, an owner of a business is the paradigm example of a “speaking agent.”  Nonetheless, Weicht is instructive as it serves as a reminder that the requisite authority can be implied from the employee’s or agent’s job responsibility; and, by its citation to Brusca v. El Al Israel Airlines, 75 A.D.2d 798, 800 (2d Dep’t 1980) (“foreman” who was given complete control of jobsite which showed he was the company’s “spokesman” at the site), it behooves the attorney seeking to have a statement of a party’s employee or agent admitted against the party to explore fully pre-trial the full extent of the employee’s or agent’s job responsibilities.  In that regard, the more responsibility present, the more likely speaking authority will be found.

Weicht is also notable for another reason. When the owner made the statement in the OSHA report about how plaintiff’s accident occurred, he had no personal knowledge about that accident.  All he did was write down what he was told about the accident by others on the job site who may or may not have witnessed the accident. However, this lack of personal knowledge did not preclude the admissibility of the statement, as the First Department correctly held. Id. at 552. The reason is that under New York law when an employee or agent, who is authorized to speak on behalf of the corporation about a matter, makes a statement concerning the matter based on hearsay information or even supposition, without any personal knowledge about it, the statement is still admissible. See Martin et al, New York Evidence Handbook (2d ed) at p. 715.

This rule was initially recognized by the Court of Appeals in Reed v. McCord, 160 N.Y. 330 (1899). In Reed, a wrongful death action, the defendant stated at a coroner’s inquest that the death of the decedent was due to the negligence of a fellow employee in maintaining a machine which caused the death.  Defendant had no personal knowledge of the machine’s condition and he just repeated what he had been told by others. Id. at 340. The court held his lack of personal knowledge did not affect the admissibility of his statement as a party admission as by his statement to the coroner he had adopted those facts told to him.  Significantly, the court distinguished the situation where the party merely states what the party heard about a matter, noting such statement “would have been inadmissible as then it would only have amounted to an admission that he had heard the statement which he repeated and not to an admission of the facts included in it.” Id. at 341.

The statement in issue in Weicht fell on the admissibility side because the owner was not just repeating a statement in the OSHA report that the plaintiff’s accident occurred as described but adopting it through the making of the statement in the report. See Martin, supra at 702. Admittedly, a fine distinction but a distinction that must be noted and kept in mind.

The other decision involving, albeit indirectly, the speaking agent exception is Martinez v. Grimm, 151 A.D.3d 1847 (4th Dept. 2017). In the underlying action, a school bus owned by the defendant First Student, Inc. and operated by the defendant’s employee, Barbara Grimm, left the roadway and struck a building owned and occupied by the plaintiff.  Plaintiff alleged against defendants a negligence claim, based on allegations that Grimm should not have been operating the bus because she suffered from a recurring medical condition that caused her to suddenly lose consciousness.  To oppose defendants’ summary judgment motion, plaintiff submitted, among other matters, the deposition transcript of a bystander who boarded the bus after the accident to render assistance.  The bystander testified that she heard the school bus aide on the bus, also employed by First Student, say to Grimm, “You must have had another seizure” in response to Grimm’s inquiry, “What happened?” Id. at 1848. The testimony was offered to establish the liability of both Grimm and her employer, First Student.

The issue before the Fourth Department was whether the bystander’s testimony repeating what the school bus aide said about the cause of the accident,  clearly hearsay as it was being offered for its truth, was admissible to establish the liability of First Student, her employer, under a hearsay exception.

Initially, the statement of the school bus aide was not admissible against First Student under the speaking agent hearsay exception because there was no basis upon which it could be argued that the aide had speaking authority to comment about why the bus Grimm was operating crashed into plaintiff’s building.  How then could an employee’s hearsay statement be admissible?  As recognized by the Fourth Department, the speaking agent rule does not bar the admission of an employee’s statement where it is admissible on other grounds. See Guide at Rule 8.03(1)(c) Note. Based on the facts surrounding the school bus aide’s statement, the court found the statement was admissible under the excited utterance exception. Id. at 1848-49.  The takeaway from Martinez should be readily apparent—an agent’s or employee’s statement may be admissible against the principal or employer even when the speaking agent exception cannot be invoked when another hearsay exception is applicable; and as a result the attorney should look beyond the speaking agent exception.

Medical Records

Medical records are a staple of civil and criminal trials as an entry or entries in the records may have relevance to an issue in the case being tried. Ordinarily, an entry in a medical record will be admitted under New York’s business records exception, CPLR 4518(a), provided the usual business records foundation is established, and the entry is germane to a person’s medical treatment and diagnosis. See generally People v. Ortega, 15 N.Y.3d 610 (2010). However, an entry that may be germane to medical treatment and diagnosis, and thus properly recorded in the records and potentially admissible, must still be relevant to an issue in the trial to be admitted, and if not relevant, such entry must be redacted when there are in the records other entries that are relevant before those entries are admitted. This is the teaching of the Third Department’s decision in People v. Serrano-Gonzalez, 146 A.D.3d 1013 (3d Dept. 2017).

Defendant in this case was convicted of the crimes of rape in the first degree and sexual abuse in the first degree. The victim had testified at the trial that she and the defendant had prior to the incident in issue a consensual sexual relationship which she ended when she learned that defendant was diagnosed with HIV. Defendant was permitted to introduce the victim’s medical records, apparently to show her medical condition on the night she was allegedly raped by the defendant. The prosecution did not object to the admission of the records insofar as they contained relevant information of her condition on the night she was allegedly raped. However, the prosecution argued that references in those records to the victim’s past instances of self-inflicted cutting of her forearm and defendant-inflicted cutting of the forearm must be redacted. The trial judge granted the redaction request, a ruling the defendant argued was error. The redaction ruling was erroneous, defendant contended, because it was probative of the victim’s veracity and tendency to falsely report sex crimes. Alternatively, it was argued that redaction was improper as the jury was entitled to view the entirety of victim’s medical records once an entry therein was deemed admissible.

The Third Department rejected defendant’s argument. In an opinion authored by Justice William McCarthy, the court initially determined that the victim’s medical history as to the cuttings of her forearm was not admissible because that history was not probative of the witness’s veracity or the making of false reports of sex crimes, as argued by the defendant. Id. at 1016. Implicit in this ruling was the court’s view that although the entries were germane to how the victim should be treated medically and the diagnosis of her mental and physical condition, that fact did not require its admission when the entries were not relevant to an issue in the trial. Id. at 1016.

Upon concluding that the cuttings entries were not admissible, the court then held that those entries were properly redacted from the records that were admitted into evidence. Id. at 1016-17.  In this connection, the court indicated that there is no rule that requires the entirety of a medical record to be admitted because a single entry, or multiple entries, therein is admissible. To the contrary, the court indicated that a trial judge, upon request, must redact from a medical record any parts thereof which are not admissible.  In so concluding, Justice McCarthy fully endorsed Judge Eugene Pigott Jr.’s view as made in his concurring opinion in People v. Ortega, 15 N.Y.3d at 622-23. The obvious point Justice McCarthy was making is that an attorney should always view offered medical records, regardless of how voluminous, with an eye to requesting a redaction of parts thereof which are inadmissible.  In the absence of a review and then following that review with a redaction request, the attorney cannot complain when the jury is viewing, and perhaps relying upon, inadmissible evidence contained in an admitted medical record.


1. The cited Guide to New York Evidence, when completed, will consist of a compilation of New York’s evidentiary rules, placing particular emphasis on and adhering to the controlling precedents of the New York Court of Appeals.  The Guide will set forth each rule in black letter law fashion with a note on the sources for such rule.  It is a work in progress.  Currently, two articles are available for the bench and bar, Article 1, entitled “General Provisions,” and Article 8, entitled “Hearsay.”  The Guide may be accessed at http://www.courts.state.ny.us/judges/evidence/index.shtml.