Boyce v Gumley-Haft, Inc., 2011 NY Slip Op 01722 (App. Div. 1st 2011)
The trial court committed reversible error when it permitted plaintiff Haydenn to testify that he had overheard the superintendent of the building commenting to the handyman that defendant "[didn't] want any niggers [working] in the building." This statement was inadmissible hearsay.
The statement does not fall within the exception to the hearsay rule for an agent's making of a statement as an activity within the scope of his authority (see Loschiavo v Port Auth. of N.Y. & N.J., 58 NY2d 1040, 1041 ). Nothing in the record even suggests that the superintendent, who occasionally was given some direction by defendant when the latter visited the premises, was authorized to speak on defendant's behalf with respect to the building's employment practices and hiring and firing of employees (see Niesig v Team I, 76 NY2d 363, 374 ; Silvers v State of New York, 68 AD3d 668, 669 , lv denied 15 NY3d 705 ; Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 221 ). Nor is defendant estopped from challenging the admission of Haydenn's statement because the defense declined the court's offer to have the jury decide whether defendant had authorized the superintendent to speak on his behalf; "the question whether a given set of facts takes a declarant's statement outside [an] exception [to the hearsay rule] is one of law" (People v Norton, 79 NY2d 808, 809 n * ).
Contrary to plaintiffs' contention that the admission of Haydenn's statement, even if error, was harmless, the particular epithet used could have had no other effect than to prejudice the jury against defendant.