Some evidentiary issues –

Dank v Sears Holding Mgt. Corp., 2012 NY Slip Op 01648 (2d Dept. 2012)

“The Supreme Court properly precluded evidence of the statements of various Sears employees regarding the price match policy on the ground that they were hearsay, and not within any exception. Under the “speaking authority” exception to the hearsay rule, an employee’s comments can be binding on an employer if the plaintiff submits evidence in admissible form establishing that the employee’s statement was made within the scope of the employee’s authority to speak for the employer.  Here, however, the plaintiff did not provide evidence that the Sears employees with whom he spoke when he visited the Sears stores had the authority to speak on behalf of Sears”

“Interrogatory responses may be used by any party for the purpose of impeaching the credibility of a deponent as a witness (see CPLR 3117; 3131). However, trial courts retain their discretionary power to control the trial and to “avoid unnecessarily protracted or confusing presentation of evidence” (Feldsberg v Nitschke, 49 NY2d 636, 643). Here, it was within the Supreme Court’s discretionary power to limit the plaintiff’s use of interrogatories to impeach the credibility of a Sears witness”

“The plaintiff contends that the Supreme Court erred in precluding the introduction into evidence of an audiotape of the plaintiff’s conversations with Sears employees which, when aided by a transcript of the recording, was sufficiently audible so that a jury would not be left to speculate as to its contents.  However, the error made by the Supreme Court in excluding the audiotape was harmless (see CPLR 2002; Nestorowich v Ricotta, 97 NY2d 393, 400), as the audiotape contained nothing of probative value.”

I have not seen the speaking authority admission to the hearsay rule cited in years.  It is also nice to know that a jury verdict can nullify a court’s erroneous finding

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Legal Update (February 2026): Since this 2012 decision discussing evidentiary standards under CPLR 3117 and hearsay exceptions, there may have been amendments to Civil Practice Law and Rules provisions, updates to discovery procedures, or modifications to rules governing interrogatory use and impeachment evidence. Practitioners should verify current CPLR provisions and recent case law interpreting the “speaking authority” exception and trial court discretionary powers regarding evidence presentation.