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Legislative Memo

Lev Ginsburg
Director of Government Affairs
T 518.465.7511, ext. 207
www.bcnys.org

BILL:

S.4868 (Bonacic) / A.5919 (Weinstein)

Support

SUBJECT:

Opposing Party's Statements

 

DATE:

April 28, 2017

 

The Business Council of New York State opposes A.5919 (Weinstein) / S.4868 (Bonacic) which would amend the civil practice law and rules, in relation to admissibility of an opposing party's statement.

While we understand the impetus for this bill as well illustrated in the sponsor’s memo, we believe that the legislation would needlessly tamper with age-old common law and statutory laws on hearsay.  By allowing an exception to the rule for statements made by a company's agent or employee on matters within the scope of the employer-employee relationship, we upend the sound legal reasoning in demanding statements being made by a witness under oath, rather than third parties, for whom there is no recourse. 

This legislation undermines the importance of the hearsay rule and its role in demanding truth in statements offered as evidence.  Hearsay is generally not reliable evidence and has historically only been allowed in specific instances such as the recitation of excited utterances, present sense impressions, statements made in order to get medical treatment, pre-existing business and public records, prior inconsistent statements or admission of guilt or liability.  The law also allows the admittance of hearsay in cases where the declarant is unavailable in such cases as dying declarations, declarations against interest, prior testimony of forfeiture by wrongdoing.  The allowance of hearsay of an employee on matters within the scope of the employer-employee relationship simply does not rise to same level of necessity as other hearsay exceptions.

Further, New York already allows hearsay statements of an employee against his Employer, if the making of the statement was within the scope of his authority.  This helps ensure that the employee at very least had some command of the facts and circumstances pertaining to the issues of the case.  The current legislation does not do the same. This legislation would unnecessarily aid in creating more litigation in an already unreasonably expensive and litigious state for employers.  

For these reasons, The Business Council respectfully opposes A.5919 (Weinstein) / S.4868 (Bonacic).