Among the bills signed by New York Governor Hochul at the close of 2021 – and in addition to the bill that significantly changed New York’s insurance disclosure requirements that was the focus of our previous posts, “Amendments to New York’s Onerous New Insurance Disclosure Requirements May Be Imminent” and “New York Ends the Year with Onerous New Insurance Coverage Disclosure Rules for Defendants in Product Liability Litigation” – was a significant change to New York’s rules of evidence. On its face, it appears this change will favor the plaintiff in product liability litigation, since it is the plaintiff that typically seeks to enter into evidence unfavorable statements made by the defendant’s rank-and-file employees that are not part of management. New York Senate Bill S7093 creates a new provision in the state’s Civil Practice Law and Rules. CPLR 4549, as passed, permits the admission into evidence an opposing party’s statement at trial if it was made by a person authorized by the opposing party to make the statement on the subject or if it was made by the opposing party’s agent or employee within the scope of that relationship and during the existence of that relationship. As such, this new evidentiary rule for the New York courts closely follows the approach seen in the federal courts under Rule 801(d)(2)(D) of the Federal Rules of Evidence.

The question of “authority” typically vexed practitioners and courts, and application of the hearsay rules often prevented the...

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