TORRES v. SEDGWICK AVENUE DIGNITY DEVELOPERS LLC MHR (2021)

During the most recent trial date, the petitioner attempted to introduce certain “recordings” into evidence. Respondents objected and the court reserved decision.

Marked as petitioner's exhibit number 15 is a January 27, 2021 transcript of a voicemail purportedly left by a mold remediation company worker. Petitioner's 16(a) and 16(b) are text messages between petitioner and the same individual. Petitioner laid foundation and offered them into evidence.

Respondents object to the items on hearsay grounds. Petitioner counters that the statements are not offered for the truth of the matter asserted, but only for the fact they were made.

Hearsay is an out-of-court statement offered for truth of the matter asserted. (Nucci ex rel. Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128 [2001]; People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496 [1975]; Gelpi v. 37th Ave. Realty Corp., 281 A.D.2d 392, 392, 721 N.Y.S.2d 380 [2nd Dept. 2001]).

Generally, hearsay evidence is “inadmissible as a matter of due process and fundamental fairness, because the party against whom the hearsay statement is offered would otherwise be denied the opportunity to cross-examine the absent declarant to test his or her credibility or capacity to observe, remember or relate.” (Devon S. v. Aundrea B.-S., 32 Misc. 3d 341, 343, 924 N.Y.S.2d 233 [Fam. Ct., Kings County 2011], citing People v. Settles, 46 N.Y.2d 154, 166, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978]).

However, it is settled law that hearsay exists only when an out-of-court statement is introduced for the truth of the matter asserted in that statement, not when such testimony is introduced to demonstrate that the statement was made. (see Matter of Bergstein v. Board of Educ., 34 N.Y.2d 318, 324, 357 N.Y.S.2d 465, 313 N.E.2d 767 [1974]; Giardino v. Bernbaum, 279 A.D.2d 282, 720 N.Y.S.2d 3 [1st Dept. 2001]).

Thus, if offered solely for the fact that the statement was made, the statement is not inadmissible hearsay. (DeSario v. SL Green Management LLC, 105 A.D.3d 421, 422, 963 N.Y.S.2d 24 [1st Dept. 2013]). Indeed, anyone who hears an out of court statement may testify to it if it is offered to prove the statement was made. (see, e.g., Matter of Oberle v. Caracappa, 133 A.D.2d 202, 203, 518 N.Y.S.2d 989 [2nd Dept. 1987]; Holyoke Mut. Ins. Co. v. B.T.B. Realty Corp., 83 A.D.2d 603, 605, 441 N.Y.S.2d 301 [2nd Dept. 1981]; Benitez ex rel. Maldonado v. Whitehall Apartments Co. LLC, 19 Misc. 3d 1120[A] at 7, 2008 N.Y. Slip Op. 50779[U], 2008 WL 1744268 [Sup. Ct., New York County 2008]).

Here, petitioner did not offer the voicemail transcript and text messages to prove the existence of mold, or even that a person named “Danny” in fact worked for Enviotech Mold Removal. Per petitioner, they are offered only to show that the statements contained therein were made. (see Quinche v. Gonzalez, 94 A.d.3d 1075, 942 N.Y.S.2d 798, 2012 N.Y. Slip Op. 03158 [2nd Dept. 2012]).

As such, the offered statements are not hearsay, and petitioner need not establish any exception to hearsay.¹

Petitioner's veracity, of course, may be tested in cross-examination in the normal course. (see Matter of Oberle v. Caracappa, 133 A.D.2d at 203, 518 N.Y.S.2d 989; Stern v. Waldbaum, Inc., 234 A.D.2d 534, 535, 651 N.Y.S.2d 187 [2nd Dept. 1996]). After cross-examination, the court will determine whether to believe or disbelieve that the out-of-court statements were made. However, that would be a question of credibility, not admissibility. (see Benitez ex rel. Maldonado v. Whitehall Apartments Co. LLC, 19 Misc. 3d 1120[A] at 7).

Furthermore, courts are particularly lenient in admitting testimony of out of court statements when offered to establish notice. (see Wynn v. Little Flower Children's Services, 106 A.D.3d 64, 71, 963 N.Y.S.2d 6 [1st Dept. 2013]; Splawn v. Lextaj Corp., NV, 197 A.D.2d 479, 480, 603 N.Y.S.2d 41 [1t Dept. 1993]; Gelpi v. 37th Ave. Realty Corp., 281 A.D.2d at 392, 721 N.Y.S.2d 380; Dawson v. Raimon Realty Corp., 303 A.D.2d 708, 709, 758 N.Y.S.2d 100 [2nd Dept. 2003]; Quiroa v. Ferenczi, 77 A.D.3d 901, 909 N.Y.S.2d 762 [2nd Dept. 2010]; Stern v. Waldbaum, Inc., 234 A.D.2d at 535, 651 N.Y.S.2d 187). This is true even where the accuracy of the statement has not been established.

Given the above, the respondents’ objection to petitioner's exhibits 15, 16 and 16a is overruled and they are admitted into evidence.

SO ORDERED.

FOOTNOTES

1.   The court notes that the statements may also come into evidence if offered to show petitioner's state of mind. (see Bergstein v. Board of Ed., Union Free School Dist. No. 1 of Towns of Ossining, Et Al., 34 N.Y.2d 318, 324, 357 N.Y.S.2d 465, 313 N.E.2d 767 [1974]).

Shorab Ibrahim, J.