The New York Legislature by L. 2021, ch.833. effective Dec. 31, 2021, enacted CPLR 4549, which provides: “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.” CPLR 4549 sets forth two closely related hearsay exceptions for statements made by an agent or employee offered against the principal or agent, which exceptions can be referred to as “representative admissions.” The first part permits the admission of a statement of a party’s agent or employee against the principal or employer when the party has authorized the statement to be made, the “speaking agent” exception; and the second part allows for the admission against a party principal or employer made by the party’s agent or employee whether authorized or not concerning a matter within the scope of the agency or employment, the “agent or employee” exception.
CPLR 4549’s first part is a codification of New York’s well established “speaking agent” hearsay exception without any modifications. See generally Barker and Alexander, Evidence in New York State and Federal Courts (2d ed.) §8:21. However, the second part creating an agent or employee exception effects a sea change for New York hearsay law. Prior to the enactment of CPLR 4549, New York’s common...
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