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Business Litigation - Appellate Practice - Employment Law  – Verdict Overturned & Claim Settled on Extremely Favorable Terms During Retrial

283 A.D.2d 419, 724 N.Y.S.2d 196, 2001 N.Y. Slip Op. 04131

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Trevor Simpson, Respondent-Appellant,

v.

New York City Transit Authority, Appellant-Respondent.

Supreme Court, Appellate Division, Second Department, New York

(May 7, 2001)

CITE TITLE AS: Simpson v New York City Tr. Auth.

In an action to recover damages for employment discrimination pursuant to Executive Law § 296 and Administrative Code of the City of New York § 8-502, the defendant appeals from a judgment of the Supreme Court, Kings County (R. Rivera, J.), dated March 17, 2000, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $250,000, and the plaintiff cross-appeals, as limited by his brief, from so much of the same judgment as failed to award damages, inter alia, for economic loss on his cause of action based on retaliatory termination of employment.

Ordered that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new trial, with costs to abide the event.

A declaration made by an agent without authority to speak for the principal, even where the agent was authorized to act in the matter to which his declaration relates, does not fall within the “speaking agent” exception to the rule against hearsay and is not an admission that can be received in evidence against the principal (see, Loschiavo v Port Auth., 58 NY2d 1040; Brkani v City of New York, 211 AD2d 740; Risoli v Long Is. Light. Co., 195 AD2d 543). Therefore, testimony by the former Director of Equal Employment Opportunity for the defendant on behalf of the plaintiff which contained hearsay statements was improperly admitted as admissions against the defendant and constituted reversible error. Accordingly, the matter is remitted to the Supreme Court, Kings County, for a new trial. In light of our determination, we need not reach either party's remaining contentions.

Santucci, J. P., Altman, Florio and Adams, JJ., concur.

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