Present sense, and other, exceptions [hearsay]

Gomes v Pearson Capital Partners LLC, 2018 NY Slip Op 01560 [1st Dept 2018]

In opposition, defendant failed to raise a triable issue of fact. We will not consider defendants' hearsay exception arguments, which are raised for the first time on appeal (see e.g. Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [1st Dept 2006]), to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. Even if we were to consider such arguments, they are unavailing. The business record exception is inapplicable, since defendants have not submitted the incident report for the December 24, 2012 accident. The present sense impression exception is also inapplicable, since the out-of-court statement from plaintiff to the foreman that he fell while climbing up the scaffold is not corroborated by independent evidence (see People v Cantave, 21 NY3d 374, 382 [2013]). The excited utterance exception does not apply, since defendants have not provided sufficient evidence of plaintiff's mental state or established that he made the hearsay statement to the foreman under the stress of excitement (see People v Johnson, 1 NY3d 302, 306 [2003]; cf. Heer v North Moore St. Devs., LLC, 61 AD3d 617, 618 [1st Dept 2009]). Furthermore, plaintiff's statement to the foreman does not fall within the declaration against interest exception because plaintiff was available to, and did, testify as a witness; there is no evidence that plaintiff knew the statement was adverse to his interests when it was made; and the supporting circumstances do not attest to its trustworthiness or reliability (see People v Soto, 26 NY3d 455, 460-461 [2015]).

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