All agree that a statement made by a party to the litigation which is inconsistent with his or her testimony in court or at a deposition taken by the party in the litigation is admissible under New York’s admission exception to the hearsay rule and it may be testified to by anyone who heard it. Guide to NY Evidence [“Guide”] Rule 8.03. As stated by the Court of Appeals in Reed v. McCord, 160 N.Y. 330, 341 (1899): “[A]dmissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever, whenever, or to whomever made.” Reliability of the substance of this statement is presumed as it is unlikely that the party would admit anything against himself or herself or against his or her own interests if it were true; and the ability to cross-examine the person who testifies that he or she heard it can give some assurance that the statement made was actually made and heard accurately. But what about the situation where the person who heard it is not called to testify and instead a business record, such as a police accident report or medical record, containing the statement is offered? Does the bare fact that the admission is recorded in a tangible document render it admissible and admissible for its truth?

This issue was addressed in the Second Department in two recent decisions, Yassin v. Blackman, 188 A.D.3d 62 (2020) and Grechko v. Mainonedes Med. Ctr., 188 A.D.3d 832 (2020). I discussed both decisions in my previous column. Michael J. Hutter, “A Potpourri of Business Records Hearsay Exception Decisions,” NYLJ, Dec. 4, 2020. This column is a follow-up.

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