VIVITORIAN CORPORATION v. George Bassolino Plumbing and Heating, Inc., Appellant. (1998)

In an action to recover damages for injury to property based on negligence and breach of contract, the defendant George Bassolino Plumbing and Heating, Inc., appeals from a judgment of the Supreme Court, Queens County (Goldstein, J.), dated December 5, 1996, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $510,000.

ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

 The Supreme Court erred in admitting the statement of the appellant's employee which was contained in the Fire Marshal's report.   The hearsay statement of an employee is admissible against the employer only if the making of the statement is an activity within the scope of the employee's authority (see, Loschiavo v. Port Auth. of N.Y. & N.J., 58 N.Y.2d 1040, 1041, 462 N.Y.S.2d 440, 448 N.E.2d 1351;  Lowen v. Great Atl. & Pac. Tea Co., 223 A.D.2d 534, 535, 636 N.Y.S.2d 393).   Here, the appellant's employee had no authority to speak on its behalf (see, Merenda v. Consolidated Rail Corp., 248 A.D.2d 684, 670 N.Y.S.2d 869;  Lowen v. Great Atl. & Pac. Tea Co., supra).   The error was prejudicial and we do not find it to be harmless (see, Sujak v. Buono, 238 A.D.2d 405, 656 N.Y.S.2d 339).

In light of our determination, it is unnecessary to address the appellant's remaining contentions.

MEMORANDUM BY THE COURT.