New York Governor Kathy Hochul signed into law an amendment to the CPLR that expands the admissibility of statements made by a party’s agent or employee. This new CPLR provision will now significantly expand the “speaking agent” exception to the rule against hearsay by codifying that statements of an employee/agent are admissible as a party admission of the principal/employer if they are: (1) made about a matter within the scope of their agency/employment; and, (2) made during the existence of the agency/employment relationship.
Previously, New York Courts followed the rule that an employee’s hearsay statement is only admissible as a party admission where “the making of the statement is an activity within the scope of his [or her] authority.” See Loschiavo v. Port Auth. of N.Y. & N.J., 58 N.Y.2d 1040, 1041 (1983). In practice, this common-law rule limited speaking authority to only high levels of management. The Appellate Divisions held that the proponent of the hearsay statement need to make the sometimes difficult showing of express authority to speak on behalf of the employer. See Boyce v Guinley-Haft, Inc., 82 A.D.3d 491 (1st Dep’t 2011); see also Alvarez v. First National Supermarkets, Inc., 11 A.D.3d 572 (2d Dep’t 2004); Scherer v Golub Corp., 101 A.D.3d 1286 (3d Dep’t 2012). This strict view regarding speaking authority, as the case law indicates, held that an employee or agent who is not in charge of the business will have no implied authority to speak on...
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