Opinion
SCK 8503/03.
Decided January 10, 2005.
Claimant instituted this Small Claims action against Defendant mover for damage to her furniture allegedly caused by Defendant when it transported the furniture from New York to Georgia.
During trial, Claimant testified that, when she called to complain about the damage, Defendant's general manager instructed her on the method Defendant employed to process such claims. Objection to this testimony was made, asserting that such statements constituted hearsay since the general manager was neither in court nor called as a witness.
Hearsay is generally defined as evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated. Such "statements" include not only oral or written expressions, but non-verbal conduct of a person intended by that person as a substitute for words in expressing the matter stated. People of the State of New York v. Caviness, 38 NY2d 227, 342 N.Y.S. 2d 496 (1975). Under this definition, some argument could be made that the general manager's statements in the instant case might be considered to be hearsay.
However, it has long been established that an admission by a party to the action, while technically hearsay, is receivable in evidence under a definitely recognized exception to the hearsay rule. Matter of Anthus v. Rail Joint Co., 193 A.D. 571, 175 N.Y.S. 314 (3rd Dept. 1920). It is also well settled that when the alleged admission is made not by a party but by the party's agent or servant, it will be admissible against that party if it is within the scope of his agent's or servant's authority. Brusca v. El Al Israel Airlines, 75 AD2d 798, 427 N.Y.S. 2d 505 (2nd Dept. 1980). Therefore, according to legion of judicial precedent, out of court statements made by a party's agent may be admissible if it is demonstrated that such statements were made within the scope of the agent's authority. Spett v. President Monroe Building and Manufacturing Corp., 19 NY2d 203, 278 N.Y.S. 2d 826 (1967).
In the case at bar, Defendant's general manager is certainly in a position to speak on behalf of the company with respect to the company's general procedures, the processing of such procedures being within the scope and responsibility of the general manager's authority. As such, these statements would be admissible as an exception to the hearsay rule as a vicarious admission of a party opponent. Prado v. Onor Oscar, Inc., 44 AD2d 604, 353 N.Y.S. 2d 789 (2nd Dept. 1974). However, despite the objection made at trial, the proffered testimony is not admissible as an exception to the hearsay rule because it was not, in fact, offered to prove the truth of the matters asserted therein.
A statement which is not offered to establish the truth of the facts asserted is not hearsay. Stern v. Waldbaum, Inc., 234 AD2d 534, 651 N.Y.S. 2d 187 (2nd Dept. 1996). The truth of the statement regarding Defendant's claim procedures is not at issue; rather it was offered to demonstrate that Defendant's general manager gave Claimant advice which she acted upon as a prerequisite to instituting the current lawsuit. Giardino v. Beranbaum, 279 AD2d 282, 720 N.Y.S. 2d 3 (1st Dept. 2001). Therefore, the statement is admissible as an out-of-court utterance which is offered merely to prove that it was made, and the person testifying to such statement may be cross-examined in the ordinary way. Stern v. Waldbaum, op. cit.
Consequently, the court overrules the objection to the admission of the out-of-court statement of Defendant's general manager because it was not offered to prove the truth of the matters asserted therein.