Hearsay in opposition
Edwards v Rosario, 2018 NY Slip Op 07684 [1st Dept. 2018]
While the unsworn statement constitutes inadmissible hearsay, it may be considered in opposition to Earlybird’s motion because it is not the only evidence offered by plaintiff (see Erkan v McDonald’s Corp., 146 AD3d 466, 468 [1st Dept 2017).
Declaration against interest
Caminiti v Extell W. 57th St. LLC., 2018 NY Slip Op 07667 [1st Dept. 2018]
The court properly found that plaintiff’s testimony about her now-deceased husband’s statement regarding his accident is admissible as a declaration against interest (see generally Basile v Huntington Util. Fuel Corp., 60 AD2d 616, 617 [2d Dept 1977]; Guide to NY Evid rule 8.11, Statement Against Penal or Pecuniary Interest, http://www.nycourts.gov/judges/evidence/8-HEARSAY/8.11). Decedent’s statement that he should have known better than to use the ladder as he did, established that he knew his statement was against his interest. Although the statement was uncorroborated, it had sufficient indicia of reliability, in that the experienced, 52-year-old electrician described his accident to his wife alone in an emergency room while awaiting surgery, in the absence of any coercion or attempt to shift blame away from himself (cf. Nucci v Proper, 95 NY2d 597, 602 ). Accordingly, we decline to reach plaintiff’s alternative arguments as to the statement’s admissibility.