New York State Court of Claims

New York State Court of Claims

GILES v. THE STATE OF NEW YORK, #2009-042-512, Claim No. 110952


Synopsis


This is a decision on an evidence ruling following the trial on liability in this claim. The court reserved decision on the admissibility of a document and the Attorney General, who opposed receipt of the document into evidence, was given an opportunity to submit a brief following trial. The court has already excluded the admission of the exhibit on the ground that claimant, as the proponent of the exhibit, failed to meet the burden of showing that the report was admissible under CPLR Rule 4518. The court finds that the exhibit will not be received in evidence.

Case Information

UID:
2009-042-512
Claimant(s):
LAWRENCE GILES
Claimant short name:
GILES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110952
Motion number(s):

Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
DINKES & SCHWITZER, P.C.By: FRANK A. ROSS, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In making its ruling, the court reviewed trial exhibit 7, a two-page memorandum from Lt. J. Gonzalez to Superintendent J. Mance, dated May 17, 2005.

This claim was bifurcated for trial. A liability trial was conducted on May 11, 2009 and May 12, 2009. During the course of trial, a dispute arose as to the admissibility of Claimant’s Exhibit 7, a two-page memorandum from Lt. J. Gonzalez to Superintendent J. Mance, dated May 17, 2005. The court reserved decision on the admissibility of the document and the Attorney General, who opposed receipt into evidence of the exhibit was given an opportunity to submit a brief following trial as to why the evidence should not be admitted. Claimant’s counsel was provided with time in which to respond.

This claim is for personal injuries sustained by claimant while an inmate at the Georgetown Correctional Facility. Claimant was working in the laundry when he was electrocuted while using an allegedly defective washing machine.

As mentioned above, Claimant’s Exhibit 7 is a two-page memorandum report from Lt. J. Gonzalez to the Camp Georgetown Correctional Facility Superintendent J. Mance, dated May 17, 2005. The subject line of the memorandum describes the report as:

Follow-up Investigation on Inmate Accident, Giles, Lawrence #04R3554

Storehouse / Laundry Room, Date of Accident 5/4/05


Attached to this exhibit were a number of other materials, marked as Exhibits 7A through 7K, which represented the investigative reports that formed the basis for the memorandum, Exhibit 7. Exhibits 7A through 7K were received into evidence without objection.

The State objected to the receipt into evidence of Exhibit 7 on the grounds that the exhibit violates “the speaking agent rule”. Defense counsel maintains that the document is an analysis rather than merely a report and that there’s no proof that the author, Lt. J. Gonzalez, had the authority to make the analysis. Defendant further argues that the report is not binding upon the State.

Claimant’s attorney maintains that the records were kept in the ordinary course of business and prepared by an officer in the ordinary course of business and that the officer was apparently given the authority to investigate. It is the position of claimant’s attorney that the officer’s conclusions, expressed in the report, are an admission by an agent of the state.

It should be noted that no records clerk or other employee of the State testified as to the defendant’s record-keeping procedures and policies and neither did Lt. Gonzalez, the investigating officer who prepared the memorandum report, testify at trial. The other records which were admitted into evidence were admitted without testimonial foundation, and generally upon stipulation, or at least without objection.

There are two components to the court’s review of the admissibility of the exhibit. The first is whether it can properly be admitted as a business record, and secondly, if so admitted, whether the contents of the report are admissible under the “speaking agent” rule of evidence.

CPLR Rule 4518 governs the admission of business records and the relevant portions of the section provide that:
(a) Generally. Any 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 in 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.
. . .
(c) Other records. All records, writings and other things referred to in sections 2306 and 2307 [which includes governmental records] are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department, or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose . . .

Here, the proper foundation has not been met for admission of the exhibit as a business record. No testimonial foundation was offered for the admission of the record, setting forth the prerequisites of admissibility as stated in CPLR Rule 4518 (a). No certification or authentication was offered for admission pursuant to CPLR Rule 4518 (c).

Even assuming arguendo that the record itself is admissible as a business record, that does not mean that the entire contents of the exhibit is admissible. Claimant offers the exhibit not merely as a record of the incident, but for the truth of its contents - specifically that the conclusions of the author, Lt. Gonzalez, constitute an admission by the state. Defendant objects to this admission under the “speaking agent rule.”

As the court noted in Montes v New York City Transit Authority, 46 AD3d 121, while discussing the admissibility of conclusions contained in a Transit Authority accident report:
the business record statute “does not make admissible evidence which is otherwise inadmissible” (58 NY Jur 2d, Evidence and Witnesses § 465, at 257; see Bostic v State of New York, 232 AD2d 837, 839 [1996], lv denied 89 NY2d 807 [1997] [“(e)ven assuming that the exhibit was admissible under CPLR 4518, it is well settled that (t)he business records exception to the hearsay rule . . . does not overcome any other exclusionary rule which might properly be invoked (citations and internal quotation marks omitted)]).

(Montes v New York City Transit Authority, 46 AD3d 121, 124).


The “speaking agent rule” invoked by the defendant provides that “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” (Loschiavo v Port Authority of New York, 58 NY2d 1040, citing Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 8; Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 206). The burden is upon claimant, as the proponent of the exhibit, to establish that the officer was authorized to conduct the investigation and make the proffered report (Tyrrell v Wal-Mart Stores, Inc., 97 NY2d 650, 652; Reid v The State of New York, UID No. 2001-001-527, Claim No. 99600, December 31, 2001, Read, P.J.).

Here, the claimant has failed to meet the burden, as the proponent, for the court’s receipt of Exhibit 7 into evidence. As noted previously, Lt. Gonzalez, the investigating officer who presumably conducted the investigation and prepared the report, did not testify at trial and no authenticating proof of the document’s preparation was presented to the court. Even if the court were to presume, based upon the defendant’s stipulation to the receipt into evidence of Exhibits 7A - K, that Lt. Gonzalez did in fact prepare the report, his preparation of the report does not necessarily qualify him as a “speaking agent” able to bind the state by his admissions. As the court stated in Risoli v Long Island Lighting Co., 195 AD2d 543, a personal injury action arising out of a gas explosion at a restaurant:
[c]ontrary to the appellants’ contention, the trial court properly determined that the post-accident statement of an assistant manager of the restaurant, to the effect that another waitress had reported the smell of gas a few days before the explosion, could not be considered as evidence against the Ground Round Restaurant. This ruling is in accord with the parameters of New York’s “speaking agent” exception to the hearsay rule (see Loschiavo v Port Auth., 58 NY2d 1040; Nordhauser v New York City Health & Hosps. Corp., 176 AD2d 787). A declaration by an agent without authority to speak for the principal, even where the agent was authorized to act in the matter to which his declaration relates, does not fall within the “speaking agent” exception and thus is not an admission receivable against the principal (see Loschiavo v Port Auth., supra; Fisch, New York Evidence § 800 [2d ed]).

(Risoli v Long Island Lighting Co., 195 AD2d 543, 544; Nordhauser v New York City Health & Hosps. Corp., 176 AD2d 787; Gilbert v State of New York, 174 Misc 2d 142).

This court has already excluded the admission of Exhibit 7 on the ground that claimant, as the proponent of the exhibit, failed to meet the burden of showing that the report was admissible under CPLR Rule 4518. Nevertheless, the court also notes that the conclusions contained in the report would be inadmissible in any event, since there was no showing either that the officer was authorized to conduct the investigation and make the proffered report, or that the officer was authorized to speak on behalf of the state.

Exhibit 7 is not received in evidence. The parties are directed to file any post-trial submissions within 60 days from the date of filing of this decision and order unless a trial transcript has been ordered. In that event, the parties shall have 60 days from the date of receipt of the transcript, or the filing of this decision and order, whichever date is later.


June 29, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims