Michael A. Bottar, Say What? A Review of New York's Hearsay Rules

Say What?
A Review Of New Yorks

Hearsay Rules.
New York State Academy

of Trial Lawyers (2015).
Michael A. Bottar, Esq.

Bottar Leone, PLLC
1600 AXA Tower II
120 Madison Street
Syracuse, NY 13202
T: (315) 422 3466
F: (315) 422 4621
mbottar@bottarleone.com
www.bottarleone.com
In and For Ups tate New York . Since 1983.
Say What? A Review of New Yorks Hearsay Rules
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These materials are a survey of hearsay rules and decisions in the State of New
York. Whether by accident or design, case law cited herein is not exhaustive. Further,
there may be minority or contrary case law on any given point.
The author credits Professor Michael J. Hutters hearsay CLE print materials
prepared for the National Law Foundation, which served as an outline for these
materials.
Questions, comments, or concerns, as well as requests for reproduction, should
be submitted to the author by email at mbottar@bottarleone.com.
Michael Anthony Bottar, Esq. Bottar Leone, PLLC 1600 AXA Tower II 120 Madison St. Syracuse, NY 13202 (315) 422-3466 bottarleone.com
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Table of Contents
Part One: Hearsay Defined
I.
3
3
4
4
5
8
9
9
10
10
12
13
14
II.
III.
IV.
V.
INTRODUCTION
A.
What is Hearsay?
B.
Admissibility
C.
What is the Problem With Hearsay?
ELEMENT ONE STATEMENT
ELEMENT TWO DECLARANT
ELEMENT THREE OUT OF COURT
ELEMENT FOUR FOR THE TRUTH
A.
Independent Legal Significance
B.
Circumstantial Evidence of Reader/Hearer State of Mind
C.
Circumstantial Evidence of Declarant State of Mind
D.
Verbal Markers/Objects
E.
Impeachment
Part Two: Hearsay Exceptions
15
I.
16
16
20
21
22
22
22
24
24
26
26
28
30
30
31
37
37
39
41
41
43
II.
III.
DECLARANT MUST BE UNAVAILABLE

A.
Former Testimony
B.
Declarations Against Interest
C.
Dying Declarations
D.
Pedigree
DECLARANT MUST BE AVAILABLE
A.
Prior Inconsistent Statements
B.
Prior Consistent Statements
C.
Past Recollection Recorded
DECLARANT AVAILABILITY IRRELEVANT
A.
Admissions
B.
Present Sense Impression
C.
Excited Utterance
D.
State of Mind
E.
Business Records
i.
Electronic Records
ii.
Email
F.
Hospital and Medical Records
G.
Public Records
i.
Governmental Website
ii.
Government Investigation
Part Three: Special Rules

I.
II.
III.
IV.
V.
VI.
VII.
VIII.
MULTIPLE HEARSAY
CONDUIT HEARSAY
NEGATIVE HEARSAY
INFERENTIAL HEARSAY
DEATH CERTIFICATES
AUTOPSY REPORTS
TEXT MESSAGES AND SOCIAL NETWORK DATA
ABUSE
About the Author
44
45
49
50
50
51
51
52
53
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Part One: Hearsay Defined

I.
INTRODUCTION
A.
What is Hearsay?
Hearsay is an out of court statement offered to prove the truth of its contents.
See People v. Romero, 78 N.Y.2d 355 (1991); People v. Caviness, 38 N.Y.2d 227
(1975).
As defined by the Federal Rules of Evidence, hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. See F.R.E. 803. Evidence of a statement
offered not to prove the truth of its contents but only to prove that the statement was
made is not hearsay. See People v. Ricco, 56 N.Y.2d 320 (1982).
Per Dean Wigmore, the hearsay rule is a rule which prohibits the use of a
persons assertion, as equivalent to testimony to the fact asserted, unless the assertor
is brought to testify in court on the stand, where he may be probed and cross-examined
as to the grounds of his assertion and of his qualifications to make it. DEAN W IGMORE,
EVIDENCE 1364 (Chadbourn Rev., 1974).
In its simplest terms, hearsay is present when a witness testifies about a
statement (to be defined, infra) made by a declarant (to be defined, infra) outside of the
courtroom, and the statement is being offered to prove the truth (to be defined, infra) of
the words within the proverbial quotation marks
B.
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Admissibility
True hearsay, which may be written or spoken, is not admissible unless it falls
within a recognized exception.
See Nucci v. Proper, 95 N.Y.2d 597 (2001).
The
proponent of hearsay evidence must establish the applicability of a hearsay-rule

exception. See People v. Nieves, 67 N.Y.2d 125 (1986).
C.
Whats The Problem With Hearsay?
The rule against hearsay finds its roots in the Kings Court in England. In the
Kings Court, individuals were often convicted by hearsay statements which were often
taken out of context or even fabricated to punish those who disagreed with the King and
his policies. When the United States formed its own body of law, this practice was
outlawed in the name of ensuring every defendant a fair trial.
Theoretically, evidence offered through the testimony of a witness live in court is
more reliable than evidence offered through the introduction of a statement made by a
person prior to trial. Evidence given by a witness as to what someone else said and
then speculating as to what the meaning of that statement means is the legal equivalent
of spreading a rumor. Modern rules of evidence seek to minimize the opportunities for a
jury to be misled by evidence that is inaccurate whether by accident or design.
II.
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ELEMENT ONE - STATEMENT

In order for there to be hearsay, there must be a statement. Federal Rule of
Evidence 801(c) defines a statement as an: (a) oral assertion; (b) written assertion; or
(c) assertive conduct. The rule against hearsay applies equally to verbal statements as
well as to assertions by conduct (i.e., nonverbal assertions). See People v. Salko, 47
N.Y.2d 230 (1979).
Generally, oral and written assertions are easy to identify.
A declarative
sentence or statement, whether spoken or written, will ordinarily be a statement to the

extent that it conveys information. See, e.g., Hasbrouck v. Cadeo, 296 A.D.2d 740 (3d
Dept. 2002) (in medical malpractice action, surgeons trial testimony that an unnamed
operating room nurse told him as he was about to begin the operation that the chief of
surgery did not want him to proceed was hearsay when offered to prove that the
directive was given); cf. People v. Clark, 203 A.D. 2d 935 (4th Dept. 1994) (bank video
not extrajudicial utterance).
Just because there is noise or text does not mean that there is a statement, as
questions, commands and exclamations generally are viewed as non-assertive. See,
e.g., Headley v. Tilghman, 53 F.3d 472 (2d Cir. 1995) (Are you up? Can I come by?
Are you ready? admissible as nonhearsay circumstantial evidence that defense used
beeper to receive requests for drugs).
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Assertive conduct is more complicated, as conduct can be a statement where it

is the equivalent of or a substitute for assertive speech or writing. Examples include
communicative motions or gestures. See, e.g., People v. Madas, 201 N.Y. 349 (1912)
(identifying perpetrator by pointing to him); People v. Porco, 71 A.D.3d 791 (2d Dept.
2010) (affirmative nod not made spontaneously, but in response to probing, direct
questions was testimonial hearsay).
Reasoned analysis must be undertaken to determine whether particular conduct
is to be categorized as communicative or testimonial, and subject to hearsay
restrictions, or whether the conduct is classifiable as real or physical evidence and not
subject to hearsay exclusions. See People v. Thomas, 46 N.Y.2d 100 (1978). Simply
put, a determination must be made as to whether the non-verbal act is offered to
establish a fact. If so, then the nonverbal communication likely is assertive and may be
hearsay.
Generally, conduct engaged in by a person which has no intended
communicative purpose to another person is viewed as non-assertive. In doubtful or
ambiguous situations, it will be presumed that no intent to assert was present. See
F.R.E. 801(a) (Advisory Committee Note).
Where there is a dispute as to whether the conduct was intended as an
assertion, the party raising the hearsay objection has the burden of proving that the
conduct was intended as an assertion. See F.R.E. 801(a) (Advisory Committee Note).
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Statements that would otherwise be hearsay may also be admissible as nonhearsay if they accompany conduct that is ambiguous. These words are frequently
called verbal parts of an act. See, e.g., People v. Salko, 47 N.Y.2d 230 (1979) (The
theory of the hearsay rule is that, when a human utterance is offered as evidence of the
truth of the fact asserted in it, the credit of the assertor becomes the basis of our
inference, and therefore the assertion can be received only when made upon the stand,
subject to the test of cross-examination. If, therefore, an extrajudicial utterance is
offered, not as an assertion to evidence the matter asserted, but without reference to
the truth of the matter asserted, the hearsay rule does not apply. The utterance is then
merely not obnoxious to that rule. Demonstrative of this principle is a statement or
utterance which constitutes a verbal part of an act. Such statements are not hearsay if
offered not for the truth of their assertions, but, rather, to attach legal effect to the
conduct which they accompany.); Kuci v. Manhattan and Bronx Surface Transit
Operating Authority, 219 A.D.2d 486 (1st Dept. 1995) (statement by plaintiffs
companion was a verbal act and not hearsay); People v. Acomb, 87 A.D.2d 1 (4th
Dept. 1982) (witness statements were not wholly incidental to the conduct and the
inescapable inferences flowing from such highly prejudicial hearsay should not be
received under the pretext of elucidating conduct which was already complete).
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However, if the act is not equivocal, then contemporaneous statements that are
offered for their truth are inadmissible hearsay. See In re Alexander EE, 267 A.D.2d
723 (3d Dept. 1999) (in a proceeding alleging sexual abuse by a childs mother,
statements made by child while reaching under his grandmothers shirt to feel her
breasts, that he had done similar acts on mommy to make her feel food were
inadmissible because there was nothing equivocal in the childs conduct).
III.
ELEMENT TWO - DECLARANT

In order for there to be hearsay, there must be a statement plus a declarant.
Federal Rule of Evidence 801(b) defines a declarant as the person who made the
statement.
Generally, the declarant must be a person. A machine is not a declarant, nor is a
computer or an animal. See, e.g., People v. Stultz, 284 A.D.2d 350 (2d Dept. 2001)
(testimony of detective that he ascertained telephone number of the telephone in the
park where the crime occurred by dialing 953, which generated a recorded response
was properly admitted because the recorded response was not hearsay since it was
not the repetition of a human observation); People v. Centolella, 61 Misc.2d 723 (Sup.
Ct. Oneida Cty. 1969) (animal utterances and conduct not governed by hearsay rule);
generally U.S. v. Hamilton, 413 F.3d 1138 (10th Cir. 2005) (computer generated header
information that accompanied each pornographic image was not hearsay because it
was generated instantly without input from a person and, therefore there was neither a
statement nor a declarant).
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The hearsay rule remains in place even where the declarant is the witness.
Thus, a witness cannot testify to statements they made out of court to prove the truth of
the matter asserted unless the statement is non-hearsay or there is a hearsay exception
present.
The identity of the declarant need not be known. It is well-established that out-ofcourt statements by unknown declarants are admissible to establish notice of a
dangerous condition, even where the accuracy of the statements is not established.
Anyone who heard an out-of-court utterance which is offered merely to prove that it was
made may testify to it, and have his veracity tested upon cross examination in the
ordinary way. See, e.g., Stern v. Waldblum, Inc., 234 A.D.2d 534 (2d Dept. 1996).
IV.
ELEMENT THREE OUT OF COURT

At the risk of stating of the obvious, out-of-court means outside of the trial or
hearing where the witness is presently testifying. Enough said.

V.
ELEMENT FOUR FOR THE TRUTH?

Where the statement has no relevant purpose other than the truth, it is hearsay.
See, e.g., Rivera v. Eastern Paramedic, Inc., 267 A.D.2d 1029 (4th Dept. 1999)
(videotape inadmissible because audio portion contained hearsay comments by nurses
about care received by patient). On the other hand, where a statement may be relevant
for a non-truth purpose, it is not hearsay. Thus, the issue of admissibility is often an
analysis of relevance. The fundamental question to ask is what is the purpose of the
proposed evidence? See U.S. v. Meserve, 271 F.3d 314 (1st Cir. 201) (stated non-truth
purpose was boldly pretextual as purpose was completely irrelevant to the case).
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There are five well-recognized non-truth categories for introduction of what would
otherwise be a hearsay statement. They are (1) independent legal significance, (2)
circumstantial evidence of the hearer/reader state of mind, (3) circumstantial evidence
of the declarants state of mind, (4) verbal markers/objects, and (5) impeachment.
A.
Independent Legal Significance
An out-of-court statement may be received in court, despite apparent hearsay

implications, if the words spoken have independent legal significance because they give
rise to legal consequences. For example, where the words spoken or written create a
legal obligation, or create liability. See, e.g., All Borough Group Medical Supply, Inc. v.
GEICO Ins. Co., 43 Misc.3d 27 (2d Dept. 2013) (assignment of benefits form did not
need CPLR 4518 foundation because it had independent legal significant and only
needed authentication); generally Jauch v. Corley, 830 F.2d 47 (5th Cir. 1987)
(defamatory words); U.S. v. Wellington, 754 F.2d 1457 (9th Cir. 1988) (words amount to
offer and acceptance of terms of contract); U.S. v. Jones, 663 F.2d 567 (5th Cir. 1981)
(words constitute threat or demand).
A.
Circumstantial Evidence of Reader/Hearer State of Mind
Some words, without regard for their truth, may shed light circumstantially upon
the state of mind of the person who heard or read them and may be admissible if the
reader/hearers state of mind is relevant to the action.
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Examples include words that put the reader/hearer on notice or provide

knowledge, or words that explain the reader/hearers conduct. See, e.g., Ferrara v.
Galluchio, 5 N.Y.2d 16 (1958) (plaintiffs statement that the dermatologist told her she
should have the shoulder checked every six months because there was a possibility
that cancer might develop was not adduced to establish the fact that the site of the burn
might become cancerous . . . but merely for the purpose of establishing that there was a
basis for her mental anxiety, such testimony was not objectionable hearsay); Dawson
v. Raimon Realty Corp., 303 A.D.2d 708 (2d Dept. 2003) (plaintiffs statement that he
had notified supervisors about leak prior to accident was not hearsay because it was not
offered to prove that there was a leak, but instead for notice); Gelpi v. 37th Avenue
Realty Corp., 281 A.D.2d 392 (2d Dept. 2001) (plaintiff should have been allowed to
testify that before she fell she overhead a customer tell a store employee, near the dairy
aisle, that he had a jar of minced garlic that was broken or leaking); Stern v. Waldbaum,
Inc., 234 A.D.2d 534 (2d Dept. 1996) (witness should have been allowed to testify about
announcement made over the stores public address system 10-15 minutes before
plaintiffs fall directing an employee to clean up a spill in Aisle #1 as testimony was
admissible as non-hearsay for notice); Splawn v. Lextaj Corp., 197 A.D.2d 479 (1st
Dept. 1993) (hotel logbook entries containing reports of burglaries and thefts on
premises were not hearsay because they were offered to show that the defendant
received information and therefore was on notice of criminal activity).
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Note, that the proponent of the evidence must show that the third person heard
(or read) the statement in order for the testimony to be admissible for a non-truth
purpose. See, e.g., People v. Wlasiuk, 32 A.D.3d 674 (3d Dept. 2006) (wife-victims
diary entries containing reasons why she intended to leave her husband were
improperly admitted absent proof that the defendant read the entries).
B.
Circumstantial Evidence of Declarant State of Mind
Similar to their relevance about the statement of mind of the hearer/reader, some
words may shed light circumstantially upon the state of mind of the person who
spoke/wrote them and may be relevant where the declarants state of mind is in issue.
Examples include words that indicate the declarants knowledge, belief, intent,
fear, or other emotion/condition. See, e.g., People v. James, 98 N.Y.2d 620 (1999)
(recorded telephone conversation between declarant police lieutenant and subordinate
police officer concerning a planned meeting that evening to discuss questions about
upcoming promotional exam was admissible in perjury prosecution to provide that
planned meeting took place); Bergstein v. Board of Ed., Union Free School Dist. No. 1
of Town of Ossining, 34 N.Y.2d 318 (1974) (testimony from witnesses that they heard
the petitioner was undermining the authority and discipline of the school was not
hearsay because it was relevant to their state of mind when voting against tenure);
Loetsch v. New York City Omnibus Corp., 291 N.Y. 308 (1943) (letter authored by
decedent within four months of death was not hearsay because it was evidence of her
then-existing state of mind about her feelings for her husband); Howard v. Codick, 55
A.D.3d 1376 (4th Dept. 2008) (conversation between defendant and boss after
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accident, during which the boss said you just left, was not hearsay because it was
offered solely to establish that the statement was made, not for truth); Papa v.
Sarnataro, 17 A.D.3d 430 (2d Dept. 2005) (testimony by decedents husband that his
wife complained of night sweats to defendant physician were not hearsay as testimony
was relevant to whether complaints were made, not truth); Garsten v. MacMurray, 133
A.D.2d 442 (2d Dept. 1987) (witness should have been allowed to testify that his wife
told him she heard about oil slick on the radio because it was relevant not for truth, but
about the plaintiffs state of mind after the accident).
C.
Verbal Markers/Objects
Statements that contain names or markings may be admissible where offered as

circumstantial proof that the person identified is linked to a specific object, place or
person. See, e.g., People v. Boswell, 167 A.D.2d 928 (4th Dept. 1990) (trial court did
not err in admitting typewritten letters addressed to the defendant because they were
relevant for the limited purpose of linking the defendant to the searched apartment and
not for their truth); People v. Bailey, 268 A.D.2d 389 (1st Dept. 2000) (words JD
Yellow on narcotics envelope were not hearsay because they were admitted only to
show that the envelope in question was the same as the one sold by the defendant to
the undercover officer); People v. Howard, 261 A.D.2d 841 (4th Dept. 1999) (officers
testimony that bystander greeted defendant by saying Hi Rayray was not hearsay
since the statement went to defendants identification); U.S. v. Mejias, 552 F.2d 435 (2d
Cir. 1977) (proper to receive hotel receipt and luggage invoice into evidence because
they were circumstantial evidence of the defendants connection to the inn and the
attach case seized from the premises).
D.
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Impeachment
A witnesss prior statement may be admitted to impeach the witnesss trial

testimony where the prior statement is inconsistent with the trial testimony. See People
v. Fitzpatrick, 40 N.Y.2d 44 (1976); Campbell v. City of Elmira, 198 A.D.2d 736 (3d
Dept. 1993), affd 84 N.Y.2d 505 (1994) (in personal injury action by motorcyclist whose
cycle hit emergency vehicle as vehicle proceeded through intersection on red light,
inconsistent prior sworn testimony by driver of emergency vehicle was admissible as
evidence-in-chief).
The rule is recorded in CPLR 4514, which provides in addition to impeachment
in the manner permitted by common law, any party may introduce proof that any
witness has made a prior statement inconsistent with his testimony if the statement
was made in a writing subscribed by him or was made under oath.
Further, CPLR 60.35 provides:
(1) When, upon examination by the party who called him, a witness in a
criminal proceeding gives testimony upon a material issue of the case
which tends to disprove the position of such party, such party may
introduce evidence that such witness has previously made either a
written statement signed by him or an oral statement under oath
contradictory to such testimony. (2) Evidence concerning a prior
contradictory statement introduced pursuant to subdivision one may be
received only for the purpose of impeaching the credibility of the
witness with respect to his testimony upon the subject, and does not
constitute evidence in chief. Upon receiving such evidence at a jury
trial, the court must so instruct the jury. (3) When a witness has made a
prior signed or sworn statement contradictory to his testimony in a
criminal proceeding upon a material issue of the case, but his testimony
does not tend to disprove the position of the party who called him and
elicited such testimony, evidence that the witness made such prior
statement is not admissible, and such party may not use such prior
statement for the purpose of refreshing the recollection of the witness in
a manner that discloses its contents to the trier of the facts.
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Part Two: Hearsay Exceptions

New York recognizes several exceptions to the hearsay rule, both in the CPLR
and case law. The exceptions are rooted in the assumption that some evidence should
be received because of circumstantial probability of reliability. Statutory exceptions to
the hearsay rule include:
former testimony of an unavailable witness (CPLR 4517);
business or hospital records (CPLR 4518);
public documents (CPLR 4520);
stipulations in open court as admissions (CPLR 2104);
ancient documents (CPLR 4523);
marriage certificates (CPLR 4526);
weather and market reports (CPLR 4528 and 4533);
census reports (CPLR 4530); and
birth and death certificates (PHL 4103).
In addition to statutes, there are a number of common law exceptions to the hearsay
rule, including:
state of mind;
admissions;
present sense impression;
spontaneous declaration;
excited utterance;
pedigree;
declaration against interest;
public documents;
dying declaration; and
past recollection recorded.
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Some exceptions to the hearsay rule require that the declarant be available or
unavailable. Other exceptions may be relied upon without regard for the availability of
the declarant.
New York courts have not stated a doctrinal distinction to classify which
exceptions to the hearsay rule require the declarants unavailability. Rather, that factor
has been developed on a case-by-case basis. See People v. Buie, 86 N.Y.2d 501
(1995) (refusing to require unavailability as prerequisite to admissible of present sense
impression).
New York does not recognize a wild card or catchall exception to the rule against
hearsay. Cf. F.R.E. 807. New Yorks Court of Appeals has stated that it is not prepared
to abandon well-established reliance on specific categories of hearsay exceptions in
favor of an amorphous reliability test. People v. Nieves, 67 N.Y.2d 125 (1986).
I.
DECLARANT MUST BE UNAVAILABLE

A.
Former Testimony
In New York, the admissibility of former testimony is governed by CPLR 3117,

4517 and case law.
See Fleury v. Edwards, 14 N.Y.2d 334 (1964).
CPLR 3117
provides in relevant part that:
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at the trial or upon the hearing of a motion or an interlocutory

proceeding, any part or all of a deposition, so far as admissible
under the rules of evidence, may be used in accordance with any of
the following provisions: 1. any deposition may be used by any
party for the purpose of contradicting or impeaching the testimony
of the deponent as a witness; 2. the deposition testimony of a party
or of any person who was a party when the testimony was given or
of any person who at the time the testimony was given was an
officer, director, member, employee or managing or authorized
agent of a party, may be used for any purpose by any party who
was adversely interested when the deposition testimony was given
or who is adversely interested when the deposition testimony is
offered in evidence; 3. the deposition of any person may be used
by any party for any purpose against any other party who was
present or represented at the taking of the deposition or who had
the notice required under these rules, provided the court finds: (i)
that the witness is dead; or (ii) that the witness is at a greater
distance than one hundred miles from the place of trial or is out of
the state, unless it appears that the absence of the witness was
procured by the party offering the deposition; or (iii) that the witness
is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or (iv) that the party offering the deposition has been
unable to procure the attendance of the witness by diligent efforts;
or (v) upon motion or notice, that such exceptional circumstances
exist as to make its use desirable, in the interest of justice and with
due regard to the importance of presenting the testimony of
witnesses orally in open court; 4. the deposition of a person
authorized to practice medicine may be used by any party without
the necessity of showing unavailability or special circumstances,
subject to the right of any party to move pursuant to section 3103 to
prevent abuse.
See N.Y. C.P.L.R. 3117. CPLR 4517 provides in relevant part that:
in a civil action, at the trial or upon the hearing of a motion or an
interlocutory proceeding, all or any part of the testimony of a
witness that was taken at a prior trial in the same action or at a
prior trial involving the same parties or their representatives
and arising from the same subject matter, so far as admissible
under the rules of evidence, may be used in accordance with
any of the following provisions: 1. any such testimony may be
used by any party for the purpose of contradicting or impeaching
the testimony of the same witness; 2. the prior trial testimony of a
party or of any person who was a party when the testimony was
given or of any person who at the time the testimony was given
was an officer, director, member, employee, or managing or
Page | 18
authorized agent of a party, may be used for any purpose by any

party who is adversely interested when the prior testimony is
offered in evidence; 3. the prior trial testimony of any person
may be used by any party for any purpose against any other party,
provided the court finds: (i) that the witness is dead; or (ii) that the
witness is at a greater distance than one hundred miles from the
place of trial or is out of the state, unless it appears that the
absence of the witness was procured by the party offering the
testimony; or (iii) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment; or (iv) that the
party offering the testimony has been unable to procure the
attendance of the witness by diligent efforts; or (v) upon motion on
notice, that such exceptional circumstances exist as to make its
use desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
court; 4. the prior trial testimony of a person authorized to
practice medicine may be used by any party without the
necessity of showing unavailability or special circumstances
subject to the right of any party to move for preclusion upon the
ground that admission of the prior testimony would be prejudicial
under the circumstances.
In criminal cases, the admissibility of former testimony is governed by CPL 670.10. See
People v. Robinson, 89 N.Y.2d 648 (1997).
Generally, deposition or prior testimony of a party may be used for any purpose.
However, to introduce a deposition or prior testimony of a non-party, the declarant must
be unavailable to testify and the unavailability must be a result of one of the following:
(1) death, (2) absence more than 100 miles from the place of trial or out of state, (3)
age, (4) sickness, (5) infirmity, (6) imprisonment, or (7) inability to procure the witnesss
attendance despite diligent efforts.
Page | 19
Before admitting former testimony, the trial court must first determine that the
witness giving the former testimony is unavailable. See Matter of Christina, 216 A.D.2d
928 (4th Dept. 1995) (error for court to take judicial notice of witness testimony without
first determining that they were unavailable). The failure to make this determination
may be reversible error. See Matter of Raymond J., 224 A.D.2d 337 (1st Dept. 1994).
In addition to statute, New Yorks common law permits the admission of former
testimony that was given under oath, referred to the same subject matter, and was
heard in a tribunal where the other side was represented and allowed to cross-examine.
See, e.g., Fleury v. Edwards, 14 N.Y.2d 334 (1964).
Therefore, even if former testimony does not satisfy CPLR 4517, it may still be
admissible at common law. See Siegel v. Waldbaum, 59 A.D.2d 555 (2d Dept. 1977)
(deposition testimony should have been admitted under common law rule because it
testimony was given under oath, relates to the subject matter, and was given at a time
when the other party was, in point of fact, the examiner); Matter of Estate of Mead, 129
A.D.2d 1008 (4th Dept. 1987) (deposition testimony not admissible under common law
exception unless the party against whom the deposition testimony is offered was
present at the deposition to confront the witness). Once admitted, former testimony is
treated as through it were given in person by the witness in the later trial.
B.
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Declarations Against Interest
A declaration against interest is admissible in evidence if the following conditions

are satisfied: (1) the declarant is unavailable, (2) the declaration was against the
pecuniary, proprietary or penal interest of the declarant when made, (3) the declarant
had knowledge of the facts, (4) the declarant had no motive to misrepresent the facts,
and (5) if the declaration is against penal interest, circumstances independent of the
statement attest to its trustworthiness. See, e.g., People v. Settles, 46 N.Y.2d 154
(1978); Basile v. Huntington Utilities Fuel Corp., 60 A.D.2d 616 (2d Dept. 1977).
At the risk of stating the obvious, statements that are exculpatory are not
declarations against interest. See Cover v. Cohen, 61 N.Y.2d 261 (1984) (in product
liability case, statement by driver that the accelerator stuck on me after accident was
not admissible as part of police report as declaration against interest because the
statement was exculpatory).
For a statement to qualify as against penal interest, the declarant must be
subject to criminal prosecution when it was made.
See Kamenov v. Northern
Assurance Co. of America, 259 A.D.2d 958 (4th Dept. 1999) (in action for damages
caused by fire loss, a statement by arsonist that the insureds spouse hired him to set
the fire was not admissible as declaration against interest because it did not subject the
arsonist to criminal prosecution when it was made).
Page | 21
A declaration against interest may be made by a nonparty, and is admissible

against anyone, regardless of the existence or relationship between the declarant and
the party against whom the statement is offered. See Kelleher v. F.M.E. Auto Leasing
Cor., 192 A.D.2d 581 (2d Dept. 1993) (statements of cab driver to police officer that he
pulled patron out of cab and dropped him in the snow were declarations against interest
that could be used against taxi cab owner); Basile v. Huntington Utilities Fuel Corp., 60
A.D.2d 616 (2d Dept. 1977) (plea of defendants employee not an admission, but was
admissible as declaration against interest which can be used by anyone irrespective of
privity); Jamison v. Walker, 48 A.D.2d 320 (2d Dept. 1975) (discussion case).
C.
Dying Declarations
The proponent of a dying declaration must establish that (1) the declarant
believed his or her death was imminent when he or she made the statement, (2) the
statement relates to the cause of death, (3) the declarant would be a competent witness
if alive, and (4) the declarant died. Where these elements are satisfied, a statement
may be received as an exception to the hearsay rule. Support for the dying declaration
exception is rooted in the psychological effect that awareness of impending death i.e.,
the declarant is inclined to tell the truth of face divine retribution. People v. Nieves, 67
N.Y.2d 125 (1986).
Dying declarations are only admissible in homicide actions.
They are not
admissible in non-homicide criminal actions, or in civil actions.
D.
Page | 22
Pedigree
Hearsay evidence is admissible to prove family relationship whenever family

history is an issue.
For example, in cases concerning family lineage, descent or
succession. The exception includes only those declarations relating to marriage, birth,
death and the dates of such occurrences. See Washington v. Bank for Savings in the
City of New York, 171 N.Y. 166 (1902). The rationale for the exception is the difficulty in
proving this information when the people who have personal knowledge are, quite often,
dead.
II.
DECLARANT MUST BE AVAILABLE

A.
Prior Inconsistent Statements
A prior inconsistent statement by a nonparty witness, if offered for the truth of the
facts asserted, is hearsay.
Traditionally, these statements were admissible only to
show they were made and thus, to impeach the witness credibility. See also CPLR
4514.
However, some courts have held that prior inconsistent statements are
admissible as an exception to the hearsay rule for all purposes.
As articulated in
Letendre v. Hartford Accident and Indemnity Co., the Court of Appeals permits certain
reliable prior inconsistent statements of witnesses as evidence in chief and to impeach
in civil cases. See 21 N.Y.2d 518 (1968); Vincent v. Thompson, 50 A.D.2d 1975 (2d
Dept. 1975) (proper for mom and dad to testify that physician told them he administered
Quadrigen to patient before she fell ill, even though it was an unsworn oral statement,
as there was a full opportunity for cross-examination); cf. Adam v. South Buffalo Ry.,
Page | 23
294 A.D.2d 801 (4th Dept. 2002) (correct to receive statements for impeachment but
error to receive statement as evidence-in-chief without an independent exception to the
hearsay rule); Devore v. New York City Transit Auth., 293 A.D.2d 385 (1st Dept. 2002)
(prior inconsistent statements of nonparty eyewitness were admissible only to impeach
as there were questions about witnesss reliability, including difficulty with English);
Nucci by Nucci v. Proper, 270 A.D.2d 816 (4th Dept. 2000) (prior out of court statement
by anesthesia technician intern at hospital that nobody was paying any attention to
patient when he stopped breathing was not admissible during plaintiffs case-in-chief
under exception to hearsay rule for prior inconsistent statements; statement did not
comport with 4514 and was conclusory).
Similar to the federal rule, the declarant must be present in court for cross
examination. The rationale for the rule is that the declarants presence in court gives
the jury an opportunity to makes its own determination as to credibility of the testimony.
However, the declarants presence in court is not enough to make the statement
admissible for its truth. Rather, there must be other trappings of reliability.
On the criminal side, New York courts permit the use of prior inconsistent
statements only for impeachment purposes. See, e.g., People v. Freeman, 9 N.Y.2d
600 (1961) (as to cross examination of the other partys witnesses, statements contrary
to the witness testimony may only be used to impeach the witness); CPLR 60.35
(prohibiting a party from impeaching own witness with prior inconsistent statement
unless the testimony would disprove the position of the party who called the witness).
Page | 24
An expert disclosure prepared by counsel and served pursuant to CPLR

3101(d)(1) is not a prior inconsistent statement of the expert witness when the expert
testifies at trial. See, e.g., Veneski v. Queen-Long Island Med. Group, 285 A.D.2d 369
(2d Dept. 2001); Hageman v. Jacobson, 202 A.D.2d 160 (1st Dept. 1994) (trial court
did not err in precluding plaintiffs from reading into evidence or using as a prior
inconsistent statement the response prepared on Dr. Jacobsons behalf to their request
for expert witness disclosure pursuant to CPLR 3101(d)(1). Such statements are not
sworn, as are interrogatory answers, affidavits, trial or pretrial testimony, nor are they in
the nature of pleadings, to be used for any purpose against a party. It could not be
admitted as a prior inconsistent statement of Dr. Jacobson or of his expert witness when
neither of them had drafted the response.).
B.
Prior Consistent Statements
New York treats prior consistent statements as hearsay and will not admit them for
the truth unless they qualify under some other exception to the hearsay rules. See,
e.g., People v. Buie, 86 N.Y.2d (1995) (prior statement qualified as present sense
impression).
C.
Past Recollection Recorded
Under the past recollection recorded doctrine, a statement made by a witness of

a fact known or event observed, that cannot presently be recalled in whole or part, may
be received in evidence as a supplement to the witnesses oral testimony. See People
v. Taylor, 80 N.Y.2d 1 (1992) (where police officer wrote a memo of information given to
him by witness, but could not remember memo at time of trial or whether it was
Page | 25
accurate, it was improper to admit memo for truth as past recollection recorded); Morse
v. Colombo, 31 A.D.3d 916 (3d Dept. 2006) (physicians affidavit was not a proper past
recollection recorded because it was not made when the physicians memory was
fresh); see generally Prince, Richardson on Evidence 6220 (Farrell 11th ed.).
Before the past recollection recorded is received, the trial judge must determine
that the witness: (1) observed the event, (2) recorded his/her memory soon after the
event, (3) can presently testify that the record correctly represented his/her knowledge
when made, and (4) the witness lacks sufficient present recollection of the recorded
information. See, e.g., Landsman v. Village of Hancock, 296 A.D.2d 728 (3d Dept.
2002) (plaintiffs written notes about his encounter with police officers were inadmissible
as past recollection recorded because plaintiff could fully recall events in question);
Curran v. Port Auth. Of New York and New Jersey, 262 A.D.2d 521 (2d Dept. 1999)
(memo made by plaintiffs husband not admissible as past recollection recorded
because he did not witness events and could not recall whether memo was accurate
transcription of what wife told him).
It is not necessary for the trial witness to be the person who created the recorded
recollection,
provided
there
is
testimony
that
the
record
is
accurate
and
contemporaneous. Also, there is no predetermined amount of time for how long a

witness has to create the record. See, e.g., People v. Caprio, 25 A.D.2d 145 (2d Dept.
1966), affd 18 N.Y.2d 617 (1966) (interval of 26 or 28 minutes between event and
record would not bar statement); White Plains Towing Corp. v. State of New York, 187
A.D.2d 503 (2d Dept. 1992) (bill of particulars inadmissible as past recollection recorded
because not prepared soon after event);
III.
Page | 26
DECLARANT AVAILABILITY IRRELEVANT

A.
Admissions
In New York, admissions are exceptions to the hearsay rules (rather than
exclusions under the Federal Rules of Evidence). Virtually any statement/writing that is
arguably against the position taken by a party at trial may be interpreted as an
admission and received by a court as evidence-in-chief. See, e.g., Adams v. Agrawal,
187 A.D.2d 886 (3d Dept. 1992) (physicians statement that they injected too much dye
in him and that it damaged his kidneys was a party admission); Vendette v. Feinberg,
125 A.D.2d 960 (4th Dept. 1986) (allegation by plaintiff that defendant said he misread
an x-ray was sufficient to defeat motion for summary judgment).
Silence may also be an admission. In criminal cases, silence is rarely if ever an
admission because of Miranda v. Arizona, 384 U.S. 436 (1966).
However, in civil
actions, a partys silence is an admission provided the party heard the accusation and a
reasonable person in like circumstances would have denied it if untrue. See, e.g.,
Schwab v. Campbell, 266 A.D.2d 840 (4th Dept. 1999) (silence of defendants decedent
during interview of third-party not an admission by silence because there was no
evidence decedent was given an opportunity to speak); Sujak v. Buono, 238 A.D.2d 405
(2d Dept. 1997).
Page | 27
In addition to words uttered or written by a party, words spoken by a partys

representative may also amount to an admission.
In this area, New York differs
significantly from the Federal Rules of Evidence. Under the FRE, if an agent speaks
about a matter within the scope of the agents employment while the agent is employed,
the statement is admissible against the employer/principal.
This is not the law in New York. In New York, for the comments of an agent to
amount to an admission by the principal, the agent must have been authorized to speak
about the topic. This is unlikely if the agent is a line-level employee versus someone in
a position of authority or management. See, e.g., Tyrrell v. Wal-Mart Stores, Inc., 97
N.Y.2d 650 (2001) (statement by unidentified employee after that I told somebody to
clean this mess up was hearsay because plaintiff failed to establish that the employee
had the authority to speak on behalf of the defendant, and there was no evidence
statement was a spontaneous declaration); Loschiavo v. Port Authority of New York and
New Jersey, 58 N.Y.2d 1040 (1983) (the hearsay statement of an agent is admissible
against his employer under the admissions exception to the hearsay rule only if the
making of the statement is an activity within the scope of his authority); Laguesse v.
Storytown, U.S.A., Inc., 296 A.D.2d 798 (3d Dept. 2002) (statement by amusement park
employee who told plaintiff injured when an iron bar fell and struck her that a screw
holding the bar had broken was not an agency admission because the employee was
not authorized to speak on the defendants behalf); Navedo v. 250 Willis Ave.,
Supermarket, 290 A.D.2d 246 (1st Dept. 2002) (store managers statement overheard
by plaintiff and other witness that he had told an employee to clean that up awhile ago
Page | 28
was admissible as a representative admission because the manager had authority to

speak for the principle on the matter).
Generally, the scope of an admission is limited to the speaker.
That is, a
statement by one party cannot be used as an admission against another party. See,
e.g., Diarassouba v. Urban, 24 A.D.3d 602 (2d Dept. 2005) (plaintiff could not use
statement by surgeon as an admission against anesthesiologist).
B.
Present Sense Impression
The Court of Appeals first recognized the present sense impression exception to
the hearsay rule in 1993. See People v. Brown, 80 N.Y.2d 729 (1993). Under the
present sense impression exception to the hearsay rule, spontaneous descriptions of
events made close in time to the observations are admissible if the descriptions are
corroborated by other evidence. See People v. Vasquez, 88 N.Y.2d 561 (1996). In
theory, present sense impressions are admissible because they are premised upon
personal knowledge and before the witnesses had time to reflect about the significant of
the testimony.
The timing of the statement is critical. In short, it must be right after the event.
See People v. Ortiz, 33 A.D.3d 1044 (3d Dept. 2006) (statement made by group of kids
to police officer seven minutes after event was too remote in time to qualify as present
sense impression).
Page | 29
Present sense impressions are admissible even though the declarant did not
participate in the event (i.e., the declarant is a bystander). See People v. Chaparro, 246
A.D.2d 339 (1st Dept. 1998) (tape recording of anonymous 911 call made during the
event was admissible because it was a contemporaneous description of the event and
there was corroboration).
Where there is sufficient corroboration depends upon the facts of the case. This
is a decision that is left to the sound discretion of a trial court. See, e.g., People v.
Brown, 80 N.Y.2d 729 (1993); In re Irizarry v. Motor Vehicle Indemnification Corp., 287
A.D.2d 719 (2d Dept. 2001) (car license plate number supplied by unidentified
bystander was admissible as a present sense impression were the victim was able to
corroborate with a description of the car); Hyung Kee Lee v. New York Hosp. Queens,
118 A.D.3d 750 (2d Dept. 2014) (decedents pre-death complaints of pain, discomfort,
hunger, difficulty breathing, and a feeling that he was dying were admissible with
corroboration through decedents wife about his appearance and through the testimony
of the plaintiffs medical experts based upon the hospital records).
Where the declarant did not witness the event, made a statement remote from
the event, and/or there is a lack of corroboration, the testimony should not be received.
See, e.g., People v. Vasquez, 88 N.Y.2d 561 (1996) (statement was not a present
sense impression because it was a description of events recently witnessed not a
contemporaneous recitation); Lee v. City of New York, 40 A.D.3d 1048 (2d Dept. 2007)
(out of court statement by plaintiffs co-worker that elevator button malfunctioned was
not a present sense impression because there was no evidence the declarant was
describing someone as he was seeing it take place); Murphy v. Omer Construction Co.,
Page | 30
242 A.D.3d 964 (4th Dept. 1997) (statements offered by motorcyclist about an accident
were not admissible as present sense impressions because there was no proof of the
amount of time that elapsed between event and when the statement was made).
C.
Excited Utterance
A statement made by someone who just witnessed a startling event may be

admissible as an excited utterance. For the statement to be admissible, it must be
related to the startling event observed, must be made immediately after the event, and
must be made while the declarant remains in an emotional state of mind.
If there is time for studied reflection, then the testimony is not admissible. See,
e.g., Gagliardi v. American Suzuki Motor Corp., 303 A.D.2d 718 (2d Dept. 2003)
(statement made by plaintiff one minute after accident while she was hysterical crying
and bleeding was properly admitted as an excited utterance); Gonzalez v. City of New
York, 109 A.D.3d 510 (2d Dept. 2013) (statement of security guard who found plaintiff
that oh my God, someone else fell, was not a present sense impression because it
was not made while witnessing the happening of the event, nor was there proof of
excitement for it to qualify as an excited utterance).
D.
State of Mind
While some courts continue to treat testimony about a witness state of mind as
an exception to the rule against hearsay, this testimony is, more accurately, not hearsay
because the statements are not offered to prove the truth of the matter asserted. As
discussed, supra, common reasons for admitting statements under the state of mind
exception are to show motive or intent, to explain behavior, and for notice purposes.
Page | 31
See, e.g., Barbagallo v. Americana Corp., 25 N.Y.2d 655 (1969) (in personal injury
action involving shooting, testimony that plaintiffs wife told the defendant that plaintiff
was coming to shoot him was admissible to explain defendants conduct); Yee Sing
Tung v. Mon-Leang Mui, 260 A.D.2d 294 (1st Dept. 1999) (statements made by IRS
agent to an accountant were admissible to explain the defendants subsequent actions);
Rivera v. City of New York, 200 A.D.2d 379 (1st Dept. 1994) (medical technicians
statement that patients niece told him that patient used crack night before was
admissible on technicians state of mind despite not a business record).
E.
Business Records
CPLR 4518 governs the admissibility of business records. It provides in relevant

part that [a]ny writing or record, whether in the form of an entry in a book or otherwise,
made as a memorandum or record of any act, transaction, occurrence or event, shall be
admissible in evidence in proof of that act, transaction, occurrence or event, if the judge
finds that it was made in the regular course of any business and that it was the regular
course of such business to make it, at the time of the act, transaction, occurrence or
event, or within a reasonable time thereafter. The purpose of the rule is to eliminate
the need to call as witnesses all of the individuals who created the records before they
are admitted into evidence.
Page | 32
For records to be admissible under CPLR 4518, they must be business records,
and not records concerning purely personal acts or events. See, e.g., Paretta v. Yuhas,
273 A.D. 977 (2d Dept. 1948), affd 298 N.Y. 756 (1948) (admission in evidence of the
pages of plaintiffs diary was in error; entries were merely private memoranda of matters
to be done and not records of an act, transaction, occurrence or event).
For purposes of CPLR 4518 review, a business includes a business,
profession, occupation, or calling of any kind. See, e.g., People v Kennedy, 68 N.Y.2d
569 (1986) (pocket diaries created by one man loansharking enterprise could be
business records under CPLR 4518; fact that records were those of a sole proprietor
engaged in a criminal enterprise, and that records were only for internal use and not
display to third parties, did not disqualify records from ambit of CPLR 4518).
A business must have routine operating procedures in order for business records
to be admissible under CPLR 4518. See, e.g., F&K Supply, Inc. v. Willowbrook Dev.
Co., 304 A.D.2d 918 (3d Dept. 2003) (where witness could not provide satisfactory
evidence of how invoices were prepared, maintained or delivered, and indicated that
they were found is disarray in various locations, foundation inadequate for admissibility
of evidence as business record).
Where the record made is not routine, it will not qualify as a business record.
See Senn v. Scudieri, 165 A.D.2d 346 (1st Dept. 1991) (handwritten notation on
radiology report that patient is drunk and uncooperative was improperly admitted into
evidence as a business record because the notation was not made in the regular course
of business).
Page | 33
A record is not an admissible business record under CPLR 4518 if anyone from
the company could have sat down and created the record at any time. See People v.
Manges, 67 A.D.3d 1328 (4th Dept. 2009) (as anyone at the bank can sit down at a
computer and enter information, record not admissible under CPLR 4518 without
evidence that the data displayed on the screen, resulting in the printout, was entered in
the regular course of business at the time of the transaction).
When determining the admissibility of business records, courts assess: (1)
whether the record was made in the regular course of business, (2) whether it was the
regular course of business to make the record, and (3) whether the record was created
close in time to the act, transaction, occurrence or event.
See, e.g., Lodato v.
Greyhawk, LLC, 39 A.D.3d 494 (2d Dept. 2007) (plaintiff could not introduce payroll
records sent by the plaintiffs employer to the school district, which filed the records, as
a business record of the school district because school district did not make the record;
school district employee was not familiar with the record-keeping practices of the
plaintiffs employer); Hess v. Murnane Building Contractors, Inc., 306 A.D.2d 824 (4th
Dept. 2003) (electrical drawings prepared by non-party contractor where inadmissible
as a business record where defendant did not offer testimony that it relied upon the
contractors business records in the normal course of its own business); West Valley
Fire District #1 v. Village of Springville, 294 A.D.2d 949 (4th Dept. 2002) (fire chief could
not testify about business record that was an invoice from a company hired to fix the fire
engine).
Page | 34
[T]he mere filing of papers received from other entities, even if they are retained
in the regular course of business, is insufficient to qualify the documents as business
records [because] such papers simply are not made in the regular course of business of
the recipient, who is in no position to provide the necessary foundation testimony.
People v. Cratsley, 86 N.Y.2d 81 (1995); see Standard Textile Co. v. National Equip.
Rental, 80 A.D.2d 911 (2d Dept. 1981) (even though Standard kept and filed freight bills
in the regular course of its business, this does not qualify the records as business
records as the information contained in the freight bills was not created by a Standard
employee with personal knowledge).
Conversely, a receiving entitys employee may provide sufficient foundation
testimony for the admission of a record from another entity, even though the employee
cannot relate the other entitys specific record-making practices, if the employee is well
familiar with the circumstances under which the record is prepared, if the record is
prepared on behalf of the receiving entity and in accordance with its requirements, and
if the receiver routinely relies on such records. People v Markowitz, 187 Misc.2d266
(Sup. Ct. Richmond Cty. 2001).
As part of their gatekeeper function over the admission of business records,
courts also evaluate whether the individual called to lay the foundation for admission of
the records under CPLR 4518 has the necessary knowledge. See Chase Bank USA
NA v. Gergis, 2011 WL 2409647 (N.Y. City Civ. Ct. 2011).
Page | 35
In Gergis, the plaintiff bank commenced suit for breach of contract and for an
account stated to recover the balances due on three of defendants credit card
accounts.
At trial, the plaintiff offered electronic records consisting of credit card
account statements and, in attempt to satisfy the foundational requirements under

CPLR 4518, called a bank employee holding the title Records Custodian. The
records custodian testified that the electronic records were . . . created in the ordinary
course of [the banks] business, that it was the regular course of [the banks] business
to make the records, and the bank relied upon these [records] in conducting its
business. Based upon that testimony, the banks counsel offered the electronic credit
card statements in evidence, maintaining that the records constituted business records
within the meaning of CPLR 4518 and were not hearsay. The court refused to admit
the electronic records into evidence on the ground that a proper foundation for their
admission had not been laid.
Huh?! In support of its evidentiary ruling, the Court pointed out that the records
custodians . . . foundational testimony was essentially a verbatim recitation of the
statutory elements set forth in CPLR 4518(a). It noted that the records custodian . . .
gave absolutely no testimony as to how the electronic records concerning defendants
account statements came into existence, nor did he indicate that he even knew how
such information was collected. The court also pointed out that the records custodian
failed to . . . demonstrate that the person or persons who inputted the electronic data
had actual knowledge of the events inputted or that such person or persons obtained
knowledge of those events from someone with actual knowledge of them and who had
a business duty to relay that information regarding the events. Finally, the court found
Page | 36
that the records custodian failed to demonstrate . . . that the credit card statements
were routine reflections of day-to-day operations of [the bank] or that [the bank] had an
obligation to have the statements be truthful and accurate for the purposes of the
conduct of the enterprise. Ultimately, the court gave the records custodians robotestimony no weight or credit.
It is not necessary to call to court the person from the business who made the
record or who had first-hand information of the event in order for records to be
admissible as a business record, as long as someone in the business had personal
knowledge of the fact reported. It is adequate if the witness is an employee familiar with
the office routine. See Johnson v. Lutz, 253 N.Y. 124 (1930); Brian Hill Apartments Co.
v. Teperman, 165 A.D.2d 519 (1st Dept. 1991).
Business records kept in the ordinary course of business may be admissible if
produced pursuant to a subpoena duces tecum and accompanied by an affidavit of a
custodian or other qualified witness charged with maintaining records, stating: (1) the
affiant is qualified to make the certification, (2) the records are accurate to the affiants
knowledge, (3) the records are complete to the affiants knowledge, and (4) the records
were made and kept in the ordinary course of business within a reasonable amount of
time after the events recorded. See C.P.L.R. 3122-a(a); People v. Kinne, 71 N.Y.2d
879 (1988) (fact that certificates authenticating breathalyzer tests were created 8-36
days after the tests were performed was irrelevant to admissibility, as the recordation of
the tests occurred on the same day the tests were performed; authenticating certificate
need not be dated or produced at or near the date of the act, transaction, occurrence or
event).
i.
Page | 37
Electronic Records
It is well-settled that electronic records may be admitted into evidence under the
business record exception to the hearsay rule. See CPLR 4518; e.g., Ed Guth Realty,
Inc. v. Gingold, 34 N.Y.2d 440 (1974) (computer records and copies printed out for use
at trial are business records provided the printout is of a record regularly kept and used
in the organizations business); Federal Express Corporation v. Federal Jeans, Inc., 14
A.D.3d 424 (1st Dept. 2005) (computer generated invoices and billing records of the
amounts due were properly admitted as business records . . . ); F.K. Gailey Co., Inc. v.
Wahl, 262 A.D.2d 985 (4th Dept. 1999) (computer printout of outstanding amounts due
plaintiff was properly admitted as a business record because the data was stored in the
regular course of business); Brown v. SMR Gateway 1, LLC, 2009 WL 806792 (Sup.
Ct., Kings. Cty. 2009) (web document maintained by a governmental agency on an
official governmental website was a business record); generally Charter Oak Fire Ins.
Co. v. Fleet Bldg. Maintenance, Inc., 707 F.Supp.2d 329 (E.D.N.Y. 2009) (electronic
notes of conversation made contemporaneously were a business record, and
statements contained therein were admissions).
ii.
Email
Email communications not offered for the truth are not subject to exclusion as
hearsay. See, e.g., Rombom v. Weberman, 2002 WL 1461890 (Sup. Ct. Kings Cty.
2002) (since plaintiff introduced the e-mails to establish their effect upon plaintiff, as
opposed to the truth of their content, the e-mails did not constitute inadmissible
hearsay).
Page | 38
However, where email is offered for the truth, it may be hearsay and the
proponent must find an exception to the rule. See, e.g., Tougher Industries, Inc. v.
Dormitory Authority of State, 130 A.D.3d 1393 (3d Dept. 2015) (fact that email from
defendants employee to plaintiff was produced by defendant during discovery did not
make the email admissible absent appropriate foundation as a business record); U.S. v.
Stein, 2007 WL 3009650 (S.D.N.Y. 2007 ) (an email created within a business entity
does not, for that reason alone, satisfy the business records exception of the hearsay
rule); Perkins v. Ruzicska, 2011 WL 1044580 (Sup. Ct. Kings Cty. 2011).
Courts have considered and found electronic records in the form of email to be .
. . properly authenticated if its appearance, contents, substances, or other distinctive
characteristics, taken in conjunction with circumstances, support a finding that the
document is what its proponent claims. Manuel v. State of Texas, 2011 WL 3837561
(Tex. App. Ct. 2011). Characteristics to consider in determining whether there has been
proper authentication include: (1) consistency with the email address in another email
sent by the alleged author, (2) authors awareness, shown through the email, of the
details of the alleged authors conduct, (3) emails inclusion of similar requests that the
alleged author has made by phone, and (4) emails reference to the author by the
authors alleged nickname. See id.
As a fallback argument to admissibility of an email as a business record, courts
are often asked to determine if an email amounts to a party admission. Whether an
email is received as an admission may turn upon the inclusion of a signature block at
the end of the communication. See Sea-Land Service, Inc. v. Lozen Intern, LLC, 285
F.3d 808 (9th Cir. 2002) (email closed with an electronic signature attesting that the
Page | 39
message was authored by Mike Jacques was an adoptive admission by a party

opponent).
F.
Hospital and Medical Records
Generally, hospital records are admissible with the appropriate certification. See
CPLR 4518(c) and 2306; People v. Kennedy, 68 N.Y.2d 569 (1986). Note, however,
that the admission of a hospital or other medical record wholesale may not be
appropriate. Entries in a hospital record are only admission in evidence if (1) made in
the regular course of hospital business, and (2) for the purpose of assisting in carrying
out that business. The business of a hospital is to diagnose and treat its patients
ailments.
Consequently, the only records within the business records statutes compass
are those reflecting acts, occurrences, or events related to diagnosis, prognosis, or
treatment, or that are otherwise helpful to an understanding of the medical or surgical
aspects of the particular patients hospitalization. See Williams v. Alexander, 309 N.Y.
283 (1955); Schroder v. Consolidated Edison Co., 249 A.D.2d 69 (1st Dept. 1998);
Ginsberg v. North Shore Hospital, 213 A.D.2d 592 (2d Dept. 1995). Courts in New York
have given the statutory phrase act, transaction, occurrence or event the broadest
possible interpretation.
Page | 40
Entries appearing in a hospital record not made in the regular course of business
are not admissible under CPLR 4518. See Senn v. Scudieri, 165 A.D.2d 346 (1st Dept.
1991) (handwritten notation on radiology report that patient is drunk and uncooperative
was improperly admitted into evidence as a business record because the notation was
not made in the regular course of business).
It is well settled that an entry in a hospital record is admissible under CPLR 4518
only if it is relevant to diagnosis or treatment of the person hospitalized.
Stated
differently, the mere fact that a physician or other health care professional made an
entry in a hospital record does not mean the entry is admissible. Rather, the entry must
be germane to the diagnosis or treatment of the patient. See, e.g., Rivera v. City of
New York, 741 N.Y.S.2d 30 (1st Dept. 2002) (statements in history portion of medical
record attributed to mother that child was hit by rock were not admissible as a business
record absent showing they were germane to treatment or diagnosis); Echeverria v. City
of New York, 166 A.D.2d 409 (2d Dept. 1990) (whether plaintiff fell at home was not
germane to diagnosis or treatment and therefore was not admissible as an integral part
of the hospitals records); Goldstein v. Hauptman, 131 A.D.2d 724 (2d Dept. 1987)
(procedures followed in monitoring intravenous connection not germane to treatment or
diagnosis).
Even if the information recorded is germane to treatment and, in turn,
presumably admissible under CPLR 4518, the source of the information in the record
must be known,
If unknown, the information not admissible. See, e.g., Albrecht v.
Area Bus Corp., 249 A.D.2d 253 (2d Dept. 1998) (statement in hospital record that
plaintiff was an unrestrained passenger was inadmissible); Passino v. DeRosa, 199
Page | 41
A.D.2d 1017 (4th Dept. 1993) (history inadmissible because doctor could not cite source
of information); Ginsberg v. North Shore Hospital, 213 A.D.2d 592 (2d Dept. 1995) (trial
court properly redacted portions of history that came from plaintiff, plaintiffs attorney or
from unknown charts or records); Mercedes by Mercedes v. Amusements of America,
160 A.D.2d 630 (1st Dept. 1990) (intoxication in medical record should not have been
admitted as there was not even a hint in the entry itself that [the plaintiff] made the
statement.
Nor was any physician or nurse called to testify that he [said he was
intoxicated]); McDermott v. Barker, 20 A.D.2d 546 (2d Dept. 1963) (information in

patient history admissible where physician testified that he would not have recorded the
information if it came from anyone other than patient).
Also, a hearsay entry in a hospital record as to the happening of an injury is
admissible at trial, even if not germane to diagnosis or treatment, if the entry is
inconsistent with a position taken by a party at trial and there is evidence to connect the
party to the entry. Berrios v. TEG Mgt. Corp., 35 A.D.3d 775 (2d Dept. 2006).
G.
Public Records
i.
Governmental Website
Where electronic records are downloaded from a governmental website, they

may be admissible as a public record under CPLR 4520, or the broader common-law
public documents hearsay exception.
Page | 42
To admit an otherwise hearsay document as a public record under CPLR 4520, it

must satisfy the strict requirements of the statute specifically, the proponent of the
evidence must secure a Certificate or Affidavit of Public Officer.
To illustrate, in Miriam Osborne Memorial Home Association v. Assessor of Rye,
the petitioner brought a proceeding under Real Property Tax Law Article 7 and, at trial,
attempted to offer in evidence an electronic print-out of data maintained by the New
York State Office of Real Property Services (ORPS) on its website, ORPS SalesWeb
(http://orps.state.ny.us). See 9 Misc.3d 1019 (Sup. Ct. Westchester Co. 2005). The
electronic print-out, however, was not accompanied with a certificate or affidavit of a
public officer, and the court found that the petitioner failed to establish a basis for
admissibility under CPLR 4520.
However, the court in Osborne found that the computer document satisfied the
criteria of the common law public documents hearsay exception, which is broader than
the public record exception under CPLR 4520. The Osborne Court explained:
the common law exception for public records is justified by the
presumed reliability inherent in the recording of events by public
employees acting in the regular course of public duty. Public
employees make records pursuant to the sanction of public duty
and have no motive to falsify... As with the hearsay exception for
business records, see CPLR 4518(a), the reliability of public
records is enhanced by the routine and repetitive circumstances
under which such records are made. An additional justification is
convenience: If government employees are continually required to
testify in court with respect to matters they have witnessed or in
which they have participated in the line of duty, the efficiency of
public administration will suffer.
Page | 43
Having determined that the ORPS SalesWeb document was admissible under the
common law hearsay exception for public records, the court nevertheless emphasized
that the document still had to be authenticated. As the ORPS SalesWeb document was
an electronic record within the meaning of CPLR 4518(a) and New York State
Technology Law 306, it could be, and was, properly authenticated under those
statutes.
ii.
Government Investigation
New Yorks common law public records exception allows for the admission of any
public records made by a public officer in the course of the officers official duty. Like
CPLR 4520, it has no subject matter limitation. However, unlike CPLR 4520, it is not
limited to certificates, affidavits or other records filed in a state public office.
It is generally recognized that government investigative reports are admissible
under the common-law public documents exception to hearsay if the report was made
pursuant to a duty imposed by law. See Kozlowski v. City of Amsterdam, 1 A.D.2d 476
(3d Dept. 1985) (trial court erred in excluding from evidence a report issued by the
Medical Review Commission of the State Commission of Corrections in which rule
violations regarding supervision were recorded); Fruit and Vegetable Supreme Inc. v.
The Hartford, 28 Misc.3d 1128 (Sup. Ct. Kings Co 2010 (admitting reports of USCanada
2003 Power System Outage Task Force and New York Department of Public Service);
People v. Garneau, 120 A. D.3d 112 (4th Dept. 1986) (breathalyzer test results not
admissible as they were not authorized or required under law); Bogdan v. Peekskill
Community Hosp., 168 Misc.2d 856 (Sup. Ct. Westchester Cty. 1996) (findings of fact
Page | 44
contained in OPMC report shall be admitted at trial, while conclusions of law and
penalty shall be redacted).
Where documents are admissible under the common law exceptions, the reports
are not prima facie evidence of the facts contained therein. Rather, they are only some
evidence of the facts which the trier of fact is free to disbelieve. See Martin v. Ford
Motor Co., 36 A.D.3d 867 (2d Dept. 2007) (National Highway Traffic and Safety
Administration report was admissible under the common law public document exception
to the hearsay rule, but merely [as] some evidence of the facts which the trier of fact is
free to disbelieve).
Part Three
Special Rules
I.
MULTIPLE HEARSAY
Hearsay within hearsay is an out-of-court statement containing other out-of-court
statements, all asserted for the truth of the matters they contain. Generally, hearsay
within hearsay is inadmissible unless each level of hearsay separately comes with an
exception to the hearsay rule. See, e.g., Quinn v. 1649 Restaurant Corp., 18 A.D.3d
281 (1st Dept. 2005) (court properly excluded testimony by plaintiff about what
defendant owner told her that his manager told him about plaintiffs husband); Feinstein
v. Goebel, 144 Misc.2d 462 (Sup. Ct. Queens Cty. 1989) (statement in hospital record
recorded by physician that patients son said that father drank heavy before admission
was triple hearsay, but was admissible).
Page | 45
Even where a hearsay exception applies to each level of the statement, it may
still be excluded if, under the circumstances, the testimony lacks trustworthiness. See,
e.g., Griggs v. Childrens Hospital of Buffalo, Inc., 193 A.D.2d 1060 (4th Dept. 1993)
(testimony by friend of decedent as to what doctor told decedent was inadmissible
double hearsay where friend was not party to conversation and could not identify doctor
who made statement).
II.
CONDUIT HEARSAY
Generally, an experts opinion must be based upon facts. See Caton v. Doug
Urban Const. Co., 65 N.Y.2d 909 (1985) (expert opinion not based upon facts is
worthless). More specifically, an expert opinion must be based upon: (1) facts that are
established in the record, (2) facts that are fairly inferable from the record, or (3) out-ofcourt materials that are of the kind accepted in the profession as reliable and/or come
from a witness subject to cross-examination.
When discussing reliance upon hearsay as a foundation for an experts opinion,
one distinction to be drawn is whether the expert is a treating physician, or a physician
that has never seen or examined the patient. Courts tend to tolerate more hearsay for
treating physicians.
A treating physician (testifying as an expert) may rely in part on a report of
another physician, even if the other physicians report is not in evidence. See, e.g.,
OBrien v. Mbuga, 49 A.D.3d 937 (3d Dept. 2008) (treating physician could cite MRI
report where used in diagnosis and treatment even though film and report were not in
evidence, as opinion was also based upon physician examination); LaForte v.
Page | 46
Tiedemann, 41 A.D.3d 1191 (4th Dept. 2007) (treating orthopedist could rely upon
reports of non-testifying physician inasmuch as they were of the kind generally accepted
in the profession); but see Wagman v. Bradshaw, 292 A.D.2d 84 (2d Dept. 2002)
(treating chiropractor could not opine that accident caused herniations because he
based his opinion on another experts report). Non-treating physician experts enjoy less
leeway when it comes to reliance in whole or part upon hearsay, including the reports of
other physicians.
Generally, experts may not reference out-of-court statistics, including literature,
especially when there is an attempt to introduce the hearsay information in court on
direct examination. See, e.g., Kerr v. Vinokur, 37 A.D.3d 418 (2d Dept. 2007) (error to
permit defense expert to testify on direct about the absence of a significant study on
LASIK to suggest that surgery did not cause harm); Sullivan v. DRA Imaging, P.C., 34
A.D.3d 371 (1st Dept. 2006) (defendants neurologists reference to certain findings in
an unproduced 1991 paper by the American Academy of Neurology was impermissible
hearsay that should have been disallowed); Adkins v. Queen Van-Plan, Inc., 293
A.D.2d 503 (2d Dept. 2002) (expert could base opinion upon on MRI films, but should
not have been allowed to summarize and read into evidence statements contained in
other physicians reports that were inadmissible); People v. Beckwith, 289 A.D.2d 956
(4th Dept. 2001) (court erred in allowing a medical expert to testify concerning a study
that was not introduced in evidence and because the experts testimony concerning
that study was hearsay [when] . . . offered as proof of the facts contained in the study);
Andaloro v. Town of Ramapo, 242 A.D.2d 354 (2d Dept. 1997) (trial court improperly
allowed the defense expert to testify about the recovery rate of patients given CPR
Page | 47
in/out of the hospital setting because it was based upon out-of-court statistical material
without a showing of reliability); Borden v. Brady, 92 A.D.2d 983 (3d Dept. 1983) (expert
could identify the hearsay report relied upon and explain its significance in forming an
opinion, but it was improper to admit the report into evidence); Cummins v. Fondak, 122
Misc2d 913 (1st Dept. 1983) (introduction into evidence of five articles through an
expert was improper because they clearly represent hearsay evidence); cf. Hinlicky v.
Dreyfuss, 6 N.Y.3d 636 (2006) (algorithm found in clinical practice guidelines was
admissible not for truth, but to show the physicians thought process where physician
testified that he used the algorithm).
In this regard, the Court of Appeals commented in People v. Goldstein that
[t]o avoid any misinterpretation of our holding, we point out the
existence of a New York law issue that the parties have not
addressed and we do not reach. We have held in section I only
that Hegarty's opinion, although based in part on statements made
out of court, was admissible because those statements met the test
of acceptance in the profession. Both parties seem to assume
that, if that test was met, Hegarty was free, subject to defendant's
constitutional right of confrontation, not only to express her opinion
but to repeat to the jury all the hearsay information on which it was
based. That is a questionable assumption. Stone and Sugden
were concerned with the admissibility of a psychiatrist's opinion, not
the facts underlying it. There is no indication in either case that the
prosecution sought to elicit from the psychiatrist the content of the
hearsay statements he relied on. And it can be argued that there
should be at least some limit on the right of the proponent of an
expert's opinion to put before the factfinder all the information, not
otherwise admissible, on which the opinion is based. Otherwise, a
party might effectively nullify the hearsay rule by making that party's
expert a conduit for hearsay.
6 N.Y.3d 119, 126 (2005).
Page | 48
An expert shall not rely merely upon a review of literature as a basis for an
opinion. See Gushlaw v. Roll, 290 A.D.2d 667 (3d Dept. 2007) (trial court correctly
precluded testimony based upon the results of the experts independent research of
certain medical literature as it was clear that defendant made such offer as proof of the
facts or opinions contained in such literature, and it is equally clear that such literature,
even if considered authoritative, is not admissible for such purpose);
An expert may not refer to a medical treatise or literature on direct examination,
as this is impermissible hearsay. See, e.g., Lipschitz v. Stein, 10 A.D.3d 634 (2d Dept.
2004) (trial court erred in permitting plaintiffs' counsel to attempt to impeach defendant
by reading into the record a passage from an unidentified medical treatise during
plaintiffs' direct examination of defendant as [a]lthough opinion in a publication which
an expert deems authoritative may be used to impeach an expert on cross-examination
. . . , the introduction of such testimony on direct examination constitutes impermissible
hearsay).
The PDR is not admissible into evidence as it is hearsay. See, e.g., Spensieri v.
Lasky, 94 N.Y.2d 231 (1999) (trial court correctly precluded plaintiffs attempt to
introduce excerpts from PDR through her expert on direct examination as some
evidence of the standard of care as PDR was inadmissible hearsay when offered for the
truth); Winant v. Carras, 208 A.D.2d 618 (2d Dept. 1994); Rosario v. New York City
Health & Hosps. Corp., 87 A.D.2d 211 (1st Dept. 1982); Nicolla v. Fasulo, 161 A.D.2d
966 (3d Dept. 1990).
III.
Page | 49
NEGATIVE HEARSAY
Negative hearsay arises in a situation where a party attempts to introduce
testimony about the nonexistence or nonoccurrence of a fact or event.

The CPLR provides for the admissibility and prima facie effect of a limited type of
negative hearsay. Namely, a statement signed by the custodian of public records that
he has made a diligent search of the records and found no record or entry of a specified
nature . . . See CPLR 4521.
There is no provision in the CPLR stating that the unsuccessful search for a
record or entry in the business records of a private party is admissible to show that lack
of the record or entry. Until recently, the law in New York was understood to be that
[s]uch evidence, completely negative, has uniformly been held to be hearsay in
character and incompetent and irrelevant. Whitfield v. City of New York, 2007 WL
2142300 (Sup. Ct. Kings Cty. 2007), citing Steingart Associates, Inc. v. Sandler, 28
A.D.2d 801 (3d Dept. 1967); Roe v. Nichols, 5 A.D. 472 (2d Dept. 1896).
More recently, New York courts have loosened the rule and permitted the
introduction of negative hearsay evidence.
See, e.g., Chiu-Caranese v. DeMeo, 2
A.D.3d 766 (2d Dept. 2003) (trial court properly admitted testimony of two drug
company representative that, after searing their own records, they could find no record
of defendant receiving samples of two prescription medications); generally Smith v.
Korn Industries, Inc., 262 S.E.2d 27 (1980) (in a personal injury action wherein plaintiff
sought to corroborate his allegation that prostatitis diagnosed approximately one week
after collision resulted from the accident, plaintiff's friend's testimony that he had never
Page | 50
heard plaintiff complain of any prostate or urinary problems prior to collision was
negative hearsay which was inadmissible to show that condition did not in fact exist).
IV.
INFERENTIAL HEARSAY
Inferential hearsay is a clever tactic employed as an end run around the hearsay
rule, illustrated through questions and answers that follow:

Q:
Did you speak with your boss?
A:
Yes.
Q:
What did he tell you to do?
Objection. Hearsay.
Q:
After speaking with your boss, what did you do?
Objection. Inferential hearsay.

A:
I turned on the light.
In New York, there are no civil cases dealing directly with the notion of the
admissibility (or not) of inferential hearsay.
IV.
DEATH CERTIFICATES
A death certificate may contain hearsay. See, e.g., Greenberg v. Prudential Ins.
Co., 266 A.D.2d 685 (2d Dept. 1943) (error to admit in evidence over plaintiffs objection
the death certificate with its hearsay statements that death resulted from *** (suicide)
*** and that deceased jumped in front of train).
V.
Page | 51
AUTOPSY REPORTS
The contents of an autopsy report may be hearsay. Generally, courts do not
consider the non-opinion portion of an autopsy report to be testimonial and, in turn,

sections are not hearsay. See, e.g., People v. Freycinet, 51 A.D.3d 731 (2d Dept.
2008) (non-opinion portion of the autopsy report was nontestimonial in nature and,
thus, was admissible under the business records exception to the hearsay rule even
though the doctor who had prepared the report was unavailable); People v. Bryant, 27
A.D.3d 1124 (4th Dept. 2006) (only pathologists opinions in autopsy report were
testimonial evidence).
VI.
TEXT MESSAGES AND SOCIAL NETWORK DATA

In
addition
to
hearsay
principles,
whether
texts,
instant
messange
communications, and social network information are admissible may turn upon whether
the information communications can be authenticated properly. See, e.g., People v.
Clevenstine,
68
A.D.3d
1448
(3d
Dept.
2009)
(computer
disk
containing
communications between defendant and victims about sexual activities properly

authenticated and received as admissions); People v. Pierre, 41 A.D.3d 289 (1st Dept.
2007) (instant message admissible where witnesses testified to defendants screen
name, that she sent a text to that screen name, and received a reply which made no
sense unless the reply was sent by the defendant); cf. People v. Givans, 45 A.D.3d
1460 (4th Dept. 2007) (text message inadmissible).
VII.
Page | 52
ABUSE
It is improper for an attorney to repeatedly call attention to hearsay. See, e.g.,
Labate v. Plotkin, 195 A.D.2d 444 (2d Dept. 1993) (defense counsel on cross
repeatedly utilized hearsay statements from medical texts and article not accepted as
authoritative questions clearly indicated to the jury that text from notepad were taken
from texts); Zeleznik v. Jewish Chronic Disease Hospital, 47 A.D.2d 199 (2d Dept.
1975) ([w]e deal here with more than the impropriety of calling attention to the hearsay
contents of a medical article rejected by the expert who is being cross-examined . . .).
Page | 53
About the Author

Michael Anthony Bottar is a member of Bottar Leone, PLLC, a Syracuse-based
law firm established in 1983. Mikes trial practice is limited to the prosecution of medical
malpractice, wrongful death, workplace accident, and complex personal injury actions in
all New York State and Federal courts, with an emphasis on claims involving birth
injuries, governmental negligence, and biomedical product liability.
Mike is a graduate of Colgate University and a summa cum laude graduate of
Syracuse University College of Law, where he has served as an adjunct professor since
2010, has authored the Civil Practice chapter of the Syracuse Law Reviews Survey of
New York Law since 2009, and is a member of the law schools Board of Advisors.
Mike is AV rated by Martindale-Hubbell. He is listed in The Best Lawyers In
America for medical malpractice, product liability and personal injury, and is listed in
New York Super Lawyers (Upstate) for medical malpractice. Mike has been repeatedly
recognized as one of New Yorks top 10 under 40 by the National Academy of
Personal Injury Attorneys, and as one of New Yorks top 40 under 40 and top 100 by
The National Trial Lawyers and the American Society of Legal Advocates. He is a life
member of the Million and Multi-Million Dollar Advocates Forums.
Mike is a member of the board of directors of the New York State Academy of
Trial Lawyers and serves on its judicial screening committee. He is also a member of
the Onondaga County Bar Association, New York State Bar Association, Northern
District of New York Federal Court Bar Association, American Bar Association, and the
American Association for Justice.
Mike is a past member and executive editor of the Syracuse Law Review, which
published his note: "Robbing Peter To Pay Paul: Medicaid Liens, Supplemental Needs
Trusts and Personal Injury Recoveries on Behalf of Infants In New York State Following
the Gold Decision." Mikes note has been cited by the Practicing Law Institute (twice),
American Jurisprudence Proof of Facts, and the American Bar Association's Real
Property Trusts and Estates Law Journal. Mike is a past member of the Syracuse
University College of Law Moot Court Honor Society, and was inducted into the Order of
the Coif, the Order of Barristers and the Justinian Honorary Law Society.
Mike began his legal career as a litigation associate with the New York City office
of White & Case, LLP, with professional highlights including representing a French bank
on trial in the United States District Court for the Northern District of California, and
conducting depositions and internal investigations in Buenos Aires, Brussels, Paris,
Hong Kong and Shanghai. Immediately prior to joining Bottar Leone, PLLC, Mike was a
litigation associate with the Syracuse office of Bond, Schoeneck & King, PLLC.

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Say What?

A Review Of New Yorks

New York State Academy

Michael A. Bottar, Esq.

In and For Ups tate New York . Since 1983.

Say What? A Review of New Yorks Hearsay Rules

Say What? A Review of New Yorks Hearsay Rules

Part Two: Hearsay Exceptions

DECLARANT MUST BE UNAVAILABLE

Part Three: Special Rules

About the Author

Say What? A Review of New Yorks Hearsay Rules

Part One: Hearsay Defined

Say What? A Review of New Yorks Hearsay Rules

See Nucci v. Proper, 95 N.Y.2d 597 (2001).

proponent of hearsay evidence must establish the applicability of a hearsay-rule

Whats The Problem With Hearsay?

Say What? A Review of New Yorks Hearsay Rules

ELEMENT ONE - STATEMENT

sentence or statement, whether spoken or written, will ordinarily be a statement to the

Say What? A Review of New Yorks Hearsay Rules

Assertive conduct is more complicated, as conduct can be a statement where it

Say What? A Review of New Yorks Hearsay Rules

Say What? A Review of New Yorks Hearsay Rules

ELEMENT TWO - DECLARANT

Say What? A Review of New Yorks Hearsay Rules

ELEMENT THREE OUT OF COURT

hearing where the witness is presently testifying. Enough said.

ELEMENT FOUR FOR THE TRUTH?

Say What? A Review of New Yorks Hearsay Rules

Independent Legal Significance

An out-of-court statement may be received in court, despite apparent hearsay

Circumstantial Evidence of Reader/Hearer State of Mind

Say What? A Review of New Yorks Hearsay Rules

Examples include words that put the reader/hearer on notice or provide

Say What? A Review of New Yorks Hearsay Rules

Circumstantial Evidence of Declarant State of Mind

Say What? A Review of New Yorks Hearsay Rules

Statements that contain names or markings may be admissible where offered as

Say What? A Review of New Yorks Hearsay Rules

A witnesss prior statement may be admitted to impeach the witnesss trial

Say What? A Review of New Yorks Hearsay Rules

Part Two: Hearsay Exceptions

former testimony of an unavailable witness (CPLR 4517);

business or hospital records (CPLR 4518);

public documents (CPLR 4520);

stipulations in open court as admissions (CPLR 2104);

ancient documents (CPLR 4523);

marriage certificates (CPLR 4526);

weather and market reports (CPLR 4528 and 4533);

census reports (CPLR 4530); and

birth and death certificates (PHL 4103).

present sense impression;

declaration against interest;

Say What? A Review of New Yorks Hearsay Rules

dying declaration; and

past recollection recorded.

DECLARANT MUST BE UNAVAILABLE

In New York, the admissibility of former testimony is governed by CPLR 3117,

See Fleury v. Edwards, 14 N.Y.2d 334 (1964).

provides in relevant part that:

Say What? A Review of New Yorks Hearsay Rules

at the trial or upon the hearing of a motion or an interlocutory