Ellis v. Allstate Insurance

97 A.D.2d 970, 468 N.Y.S.2d 776, 1983 N.Y. App. Div. LEXIS 20800

Opinion

Judgment unanimously reversed, on the law, with costs, and new trial granted. Memorandum: The hearsay statement of Chedorloamer Sotero was not admissible as an admission against interest, because it was not established that the declarant was unavailable or that when the declarant made the statement he knew it was against his interest (People v Maerling, 46 NY2d 289, 298). While the statement would be admissible as an admission by a party if offered against Sotero (Gangi v Fradus, 227 NY 452; Reed v McCord, 160 NY 330, 341; Rosario v New York City Tr. Auth., 73 AD2d 912), the statement was not admissible against a coparty (4 Wigmore, Evidence [3d ed], § 1076; Richardson, Evidence [10th ed], § 232). Thus, defendant Allstate could not offer Sotero’s hearsay statement as evidence against Ellis. We note that this hearsay statement was virtually the only evidence supporting Allstate’s position that the firing of the BB gun was intentional rather than accidental. Therefore, there must be a new trial. (Appeal from judgment of Supreme Court, Erie County, Sedita, J. — declaratory judgment). Present — Hancock, Jr., J. P., Doerr, Denman, Moule and Schnepp, JJ.