Under present New York law, an out-of-court admission of an agent or employee is admissible in evidence in an action against his principal or employer as an admission of the principal or employer only if the making of the statement is an activity within the scope of his/her authority.1 Under this so-called "speaking agent" hearsay exception, it "is not enough that the agent [employee] be authorized ‘to act’ for the principal [employer]. The agent [employee] must be authorized to ‘speak.’"2 Notably, New York law is contrary to Federal Rule of Evidence 801(d)(2)(D) and the statutory/common law evidence rule in 46 states and the District of Columbia which provide that an admission of an agent or employee will be received in evidence as an admission of the principal or employer if it concerns a matter within the scope of the agency or employment and was made during that relationship.3 The rule in these other jurisdictions does not "require that the agent [employee] be authorized to speak; [it] simply requires that the agent [employee] be speaking about a matter within his job description.4

This column will address New York’s "speaking agent" rule. It will do so in the context of two Appellate Division decisions since 2011, Boyce v. Gumley-Haft Inc., 82 A.D.3d 491 (1st Dept. 2011), and Scherer v. Golub Corp., 101 A.D.3d 1286 (3d Dept. 2012). These two decisions prompted this column because they raise significant practical concerns as to the nature of the proof necessary to establish the requisite authority to speak, and as well suggest the time has come to abandon New York’s restrictive rule and adopt FRE 801(d)(2)(D).

Question of Authority

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