719 N.Y.S.2d 163 | N.Y. App. Div. | 2000
Lead Opinion
Appeals (1) from a judgment of the Supreme Court (Best, J.), entered September 10, 1999 in Fulton County, upon a verdict rendered in favor of plaintiff, and (2) from an order of said court, entered July 7, 1999 in Fulton County, which, inter alia, denied defendant’s motion to set aside the verdict.
On May 6, 1994, plaintiff injured her right knee when she slipped and fell on a jelly-like substance in defendant’s department store located in the Town of Johnstown, Fulton County. The jury returned a verdict in plaintiff’s favor totaling $103,000. Plaintiff’s complaint sought damages in the sum of $49,000. Supreme Court denied defendant’s motion to set aside the verdict as against the weight of the evidence or, in the alternative, to set aside the damages as excessive, and granted plaintiff’s motion to increase the amount of the ad damnum clause of the complaint. Defendant now appeals from Supreme Court’s rulings on the aforesaid motions and the judgment.
The principal issue raised by defendant on this appeal is the admissibility of a hearsay statement allegedly made by an employee of defendant to the effect that “I told somebody to clean this mess up.” Specifically, defendant argues that this state
However, since we agree with Supreme Court that the statement of the alleged employee was part of the res gestae, the statement was properly admitted. According to the trial testimony, immediately after plaintiff fell, she was assisted by her husband, another customer and the alleged employee of defendant, who at that time made the statement. Spontaneous declarations, made contemporaneously with or immediately after a startling event, are generally admissible as part of the res gestae exception to the hearsay rule (see, People v Caviness, 38 NY2d 227, 231-232). Admissibility of a spontaneous declaration is first entrusted to the Trial Judge (see, People v Norton, 79 NY2d 808, 809), and since this record contains no evidence to suggest that the statement was anything other than a spontaneous declaration, i.e., it was not the product of studied reflection, Supreme Court properly admitted the statement (see, Simmons v Ricks, 149 AD2d 914; Bransfield v Grand Union Co., 24 AD2d 586, affd 17 NY2d 474; see also, Prince, Richardson on Evidence § 8-604, at 638 [Farrell 11th ed]). Moreover, the admissibility of such declaration is not dependent on the fact of agency. It is admissible to the same extent as if made by a person not an agent (see, Simmons v Ricks, supra, at 914).
We have examined the balance of defendant’s contentions and find them to be unpersuasive. Since the hearsay statement
Peters, Rose and Lahtinen, JJ., concur.
Concurrence in Part
(concurring in part and dissenting in part). I agree with the majority that plaintiff failed to establish that the employee in question had authority to speak on behalf of defendant and, accordingly, Supreme Court incorrectly ruled that her hearsay statement was admissible as an admission against defendant’s interests. Where I disagree with the majority is with their conclusion that the statement of the employee nevertheless was admissible because it constituted part of the res gestae.
As has been noted, the term res gestae is quite amorphous and presently is considered to encompass four distinct exceptions to the hearsay rule: declarations of present bodily condition, declarations of present mental state, excited utterances and declarations of present sense impressions (see, 6 Wigmore, Evidence § 1767, at 253-256 [Chadbourn rev 1976]; McCormick, Evidence § 288, at 686 [2d ed]; Fisch, New York Evidence § 994, at 569 [2d ed]). As correctly observed by the majority, the statement before us could only be considered as an exception to the hearsay rule under the excited utterance or, as the majority refers to it, the spontaneous declaration excep