New York Public Personnel Law: Declarations of an agent not always deemed an admission of the employer in the course of litigation

August 25, 2011

Declarations of an agent not always deemed an admission of the employer in the course of litigation

Declarations of an agent not always deemed an admission of the employer in the course of litigation

Simpson v NYC Transit Authority, 1st Dept., 283 AD2d 419

Suppose a former employee is called to testify against his or her former employer as a witness in an action brought by another individual. Is such testimony to be considered an “admission” by the former employee's employer? This was one of the issues in the Simpson case.

A jury awarded Simpson $250,000 after finding the NYC Transit Authority guilty of employment discrimination in violation of New York State's Executive Law Section 296 and Administrative Code of the City of New York Section 8-502. The Authority appealed.

It seems that the Transit Authority's former Director of Equal Employment Opportunity had testified on behalf of Simpson and, presumably, against the agency. Was the former Director's testimony to be deemed an admission to the extent that it was adverse to the Authority's interests?

Noting that the such testimony contained hearsay, Appellate Divisions said that in such situations a declaration made by an agent [here the former Director of Equal Employment Opportunity] without authority to speak for the principal [i.e., the Authority], even where the agent was authorized to act in the matter to which his declaration relates, does not fall within the “speaking agent” exception to the rule against hearsay and is not an admission that can be received in evidence against the principal.

Concluding that the testimony by the Authority's former Director was improperly admitted as admissions against the Authority, the Appellate Division ruled that this constituted reversible error and remanded the matter to Supreme Court for a new trial.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.