January 18, 2022

On January 6, New York Governor Kathy Hochul signed a law that expands the admissibility of statements made by a party’s agent or employee. The goal of the update to the law is to expand the “speaking agent” exception to the rule against hearsay. If this sounds like a lot of legal speak, hang in there because it is actually a very important evolution in the law that will benefit injured workers.

Prior to Hochul signing the amendment, Courts followed the rule that an employee’s hearsay statement is admissible as a party only if making the statement was an activity within the scope of the employees’ authority.  

What this did, in essence, was potentially limit who had the authority to speak on such matters to the upper level leaders in an organization. The Appellate Courts, in various rulings, carved out a narrow path to allow someone to use the exception to the hearsay rule, putting the onus on the speaker to show he or she had the explicit authority to speak on behalf of the employer, a benchmark that in many cases was difficult, if not impossible, to reach.

Recognizing the impact on injured parties by limiting potentially valuable testimony in legal matters, the legislature intervened. Going forward, the statements of an employee or agent will now be admissible as a party admission of the employer if:

  • They are made about a matter that falls within the scope of the agency/employment.
  • The statement is made during the existence of the agency/employment relationship.

Given the fact that employers are, in most cases, responsible for the acts of their employees and agents, especially if those acts are committed within the scope of the person’s employment or agency, it only makes sense that statements by employees or agents in those positions should be admissible. This is, unequivocally, a huge win for injured workers statewide who will now be able to provide jurors with crucially relevant information to help them win their case.

Sarah Rera is a litigation attorney with Gross Shuman P.C. who focuses her practice in the areas of personal injury and business litigation. She has served as trial counsel in multiple complex business disputes and personal injury claims in New York State Supreme Court, receiving numerous successful verdicts for her clients. She is also an experienced appellate practitioner and has appeared before the Appellate Division and the New York Court of Appeals, the highest Court in New York. She can be reached at 716-854-4300 ext. 289 or [email protected]