Vivitorian Corp. v. Brooklyn Union Gas Co.

Appellate Division of the Supreme Court of New York

Vivitorian Corp. v. Brooklyn Union Gas Co.

250 A.D.2d 762, 672 N.Y.S.2d 919, 1998 N.Y. App. Div. LEXIS 5759

Appellate Division of the Supreme Court of the State of New York·Decided May 18, 1998·Published

Opinion

—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., 58 NY2d 1040, 1041; Lowen v Great Atl. & Pac. Tea Co., 223 AD2d 534, 535). Here, the appellant’s employee had no authority to speak on its behalf (see, Merenda v Consolidated Rail Corp., 248 AD2d 684; 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 AD2d 405).

In light of our determination, it is unnecessary to address the appellant’s remaining contentions. Bracken, J. P., O’Brien, Copertino and Altman, JJ., concur.

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—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., 58 NY2d 1040, 1041; Lowen v Great Atl. & Pac. Tea Co., 223 AD2d 534, 535). Here, the appellant’s employee had no authority to speak on its behalf (see, Merenda v Consolidated Rail Corp., 248 AD2d 684; 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 AD2d 405).

In light of our determination, it is unnecessary to address the appellant’s remaining contentions. Bracken, J. P., O’Brien, Copertino and Altman, JJ., concur.

Vivitorian Corp. v. Brooklyn Union Gas Co., 250 A.D.2d 762, 672 N.Y.S.2d 919, 1998 N.Y. App. Div. LEXIS 5759 (N.Y. Ct. App. 1998).

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