NY Landowner Mark Ferran Won Two Jury Verdicts against Trespassers despite attempts by an interloping District Attorney and the Trial Judge to Defeat the Due Course of Justice.
On Thursday February 17, 2005, I won a civil trial as a Pro Se Co-Plaintiff with my mother Nadia in the State court in Rensselaer County, New York. I won Two Jury Verdicts, one against each of the two defendants, for "Trespass" (Liability) upon my family's land, private road, and Antique Bridge in Grafton, New York. The Ferrans' Antique Bridge is composed of a riveted boiler-plate steel culvert tube about 4 feet in diameter, with 10 feet tall stonework on each end of the culvert holding up the dirt and gravel of the roadway. The bridge crosses over the picturesque ravine of the Indian Creek in the NW corner of the Town of Grafton. The Bridge (and the former public highway that it carried) is believed to have been built between 1820 and 1850.
The Jury found liable for Trespass each of John Basolt and his partner Dominick Longo whom I sued for Trespass in connection with their participation in timber theft from the land of a neighbor [David Smith http://home.nycap.rr.com/mferran ]. John Basolt trespassed across my family's land as a means for surreptitiously getting to and stealing the trees of Mr. David Smith. See http://home.nycap.rr.com/mferran John Basolt contrived with the State Police (telling them that John Basolt owned the Smith Parcel) to have me charged with endangering the (trespassing) tires of his skidder since I had deployed less-than "Severe Tire Damage" tire-spikes on my land behind warnings, barriers and signs.
From the February 2004 Times Union Article of Fred LeBrun at: http://www.wiwfarm.com/Ferran.html
"The engineer [Mark Ferran] constructed spiked concrete. Ferran was charged -- that was three years ago -- with reckless endangerment [of Property, the tires of a trespassing Skidder] on the complaint of a local logger, John Basolt [ http://home.nycap.rr.com/mferran ]"
even though no ATV actually suffered any punctured tires and no one was injured. Plus, the logger had been told to stay off the Ferran property. [ http://home.nycap.rr.com/mferran ]
The District Attorney who I humiliated last year at the trial I won as a Defendant http://www.wiwfarm.com/Ferran.html sent several of her Assistant District Attorneys to attempt and INTERFERE with the course of the civil trespass Trial. It was recently in the newspaper that I had filed a Federal Civil Rights lawsuit against her for continuing and implementing a Policy of her predecessor which deprived Landowners of their legal right to "approach", "confront" and "arrest" defiant intruders. See http://www.federalobserver.com/archive.php?aid=3481
I demanded that the Trial Judge bar the mischievously grinning agents of the District Attorney's office from the courtroom during the Trial, and he lamely said "I have no authority" to exclude them. The District Attorney Patricia DeAngelis herself appeared at least twice in this remote courtroom during the trial or recesses thereof and continued to exert an influence over the proceedings. At one point, the Defendant's attorney explicitly advised the Court that I (Plaintiffs) had commenced a lawsuit against the District Attorney. The Judge said nothing.
The same Two agents of the District Attorney (Tweedle Dee and Tweedle Dumb) who had attempted unsuccessfully to Try and convict me of defending my land last year http://www.wiwfarm.com/Ferran.html spent many hours sitting behind the Defendant's Attorneys table in the courtroom during the four-day trial. They were sitting there on and off for four days with constant grins on their faces while being paid to sit there by the District Attorney Patricia DeAngelis. At one point, they were speaking with the attorneys of the Defendants John Basolt and Dominick Longo, and falsely stated that a certain tape recording which I had brought to my Town Court Criminal Trial last February had been "destroyed." That was False. The tape was a recording that my mother made of telephone calls that Defendant John Basolt had made TO her on April 16, 2001. I brought this tape with me to the Trial in February 4, 2004 and when we tried to play it in the tape player machine, some of the tape got jammed in the player's mechanism, and got off the spool. The Town Court judge noted that it was repairable, but instead of waiting for us to fix it, allowed us to play a copy of the tape (which had been earlier digitally recorded with a direct wire from the tape player). In the civil Trespass Trial this week, the Defendants attorneys, relying in the Lie of the Assistant District Attorney (to the effect that the original tape had been "destroyed") asserted that the original tape that we sought to introduce was not an original and that the original had been "destroyed." I demanded that the source of this Lie be identified and produced and forced to testify about it under Oath. The Judge did not exclude the tape.
The Defendant (timber thief) John Basolt Defaulted (did not respond to the Complaint served at his home) in the beginning of the lawsuit. We moved for a Default Judgment. The first corrupt Judge denied our Motion for Default. Then, defendant John Basolt appeared in person and later by attorneys. Then, John Basolt completely disappeared, and did not show up at the trial. Not even his attorney knows where he is (though they must know where his money is since they stayed at the trial for four days). We could not subpoena the Defendant because we did not know where he is. We did not really need to bring the Defendant to Trial because we had a perfect legal right to rely upon the Defendant's own prior (sworn) statements as admissions and evidence Against Him.
But, the Trial Judge (William McCarthy) ILLEGALLY excluded from evidence against John Basolt the transcribed ADMISSIONS that Defendant John Basolt had himself made UNDER OATH in the prior Criminal Trial in which he was the Complaining Witness (he complained that I had recklessly endangered his Skidder's tires when I placed "Severe Tire Damage" devices behind warnings and barriers on our private property. http://www.wiwfarm.com/Ferran.html At the Town Court Criminal Trial John Basolt expressly admitted:
John Basolt operated his Log Skidder on the Plaintiff’s roadway (bridge etc.) in March of 2001 (e.g., before Plaintiffs erected the Chain across the roadway); That on April 16 and April 17, John Basolt walked onto the Plaintiff’s land and removed Plaintiff’s tire-spikes. That on April 16 and April 17, John Basolt specifically intended to operate his skidder onto Plaintiff’s roadway (and bridge) in defiance of Plaintiffs’ ORDERS that he keep off of that roadway and keep out of Plaintiffs’ land. (This intention of John Basolt was the basis of the charge that Mark Ferran had “recklessly endangered property” (i.e., John Basolt’s Skidder’s tires) by disposing tire-spikes behind Plaintiffs’ signs and chain); In The Trial Transcript John Basolt further Admits that on April 17, 2001 he received a certain written ORDER to “KEEP OUT” from Mark Ferran; and that instead of complying with that ORDER, he immediately sought further facilitation for his intended crimes from members of the State Police, who thereafter aided and abetted him in his criminal enterprises (acting under the false impression that John Basolt had already “purchased” the Smith Parcel and the mistaken view that the owner of such parcel necessarily had a “right of way” or “easement” over Plaintiffs’ private roadway-a former public highway).
All of the above was material and relevant to my (Plaintiff) trespass case against Basolt (and his partner). Instead of allowing me to read the statements (questions with answers) of John Basolt from the Trial Transcript I brought, the Judge allowed the Defendant's attorney to argue throughout the trial that John Basolt and his employees/workers had never entered my land. The Judge even refused to allow me to testify about what I myself had seen and heard Defendant John Basolt say in open court under oath at the Town Court Trial on February 4, 2004. The Established Rule of Evidence is that a Plaintiff may use any and all prior statements of a defendant AGAINST THE DEFENDANT. See Memorandum of Law below
I am looking into whether the Judge or the Attorneys can be prosecuted for Criminal Coercion in the First or Second Degree: http://assembly.state.ny.us/leg/?cl=82&a=30
I had a right to Testify against John Basolt as to what I saw and heard John Basolt state in Court on February 4, 2004. I intended and preferred to read the same from the Transcript of that trial, but I also had a right to testify to it. The Judge threatened to "mistrial" my case (and implicitly dismiss my claims) if I testified about what defendant John Basolt himself had said at the prior Trial on February 4, 2004.
I am going to joyfully bring down and destroy some of the lawless persons who obstructed the Due Course of Justice in this case.
Mark R. Ferran BSEE scl JD mcl
Although the Law and the Facts were on my side, I was "not supposed to win" that Trial, according to the Defendants' attorneys who called my Trespass claims "frivolous" and according to the maniacal Cheshire cat grins constantly on the face of the agents of the District Attorney's office.
It is an Intriguing situation.
The District Attorney Patricia DeAngelis sent several of her employees to linger every day in the otherwise unattended civil trial. The Assistant District Attorneys sat with disturbing grins constantly on their faces and interfered as much as possible. They had no lawful or official role in this civil action between private parties. They chose to interfere (they told one of the Defendants' Attorneys) because it was recently in the newspaper that I had filed a Federal Civil Rights lawsuit against the District Attorney for continuing and implementing the Manifesto and Policy of her predecessor which deprived Landowners of their legal right to "approach", "confront" and "arrest" defiant intruders. See http://www.federal.com/archive.php?aid=3481
The District Attorney Patricia DeAngelis herself made two personal appearances in the court room. One, to ask whether that day the Jury would be "deliberating". She had no legitimate interest in the outcome of this case. She already knew with certainly that the Defendant John Basolt had entered and trespassed upon my family's lands.
Patricia DeAngelis was appointed as District Attorney by the Republican Governor of New York Pataki, to replace Kenneth Bruno WHO I FORCED TO RESIGN LAST YEAR See: http://www.federalobserver.com/archive.php?aid=3481 and see: PUBLIC COMPLAINT, on Behalf of All NY Land-owners http://www.fear.org/ferran01.htm
Former District Attorney Kenneth Bruno is the Son of State Senator Joe Bruno who is the State's most powerful Republican Legislator who together with Governor Pataki controls the Budget of the State of New York. See, e.g.,
Joe Bruno does not like me anymore because I compared his son with Hitler (though I was not the first to do so). http://www.federalobserver.com/archive.php?aid=3481
Pataki et als. do not like that I and others described him as "rapacious" ihttp://www.uslawbooks.com/forums/forum5/messages/52.html
And, I just discovered the reason why the state Judge William McCarthy flagrantly disregarded my substantive legal rights under the Law of Trespass as a Plaintiff in a trespass suit and why he flagrantly and absurdly violated the Law of Evidence. It is NOT because he is a dumb ass, as I had assumed until today. I just looked him up online.
He was personal Aide and Counsel to Governor George Pataki before he was recently appointed as State Judge by Governor Pataki last year. He is a Political Hit Man, who is owned by Pataki et als, and was selected and ordered to subvert the Due Course of Justice in my Trespass case. That is why the District Attorney EXPECTED a verdict for the Defendants and why her employees were grinning throughout their visits, and why the District Attorney wanted to know exactly when the Verdict for the Defendants would be announced. The Republican Hit Man FAILED, and now (just like in the movies) I am going to destroy the Republican's Hit Man.
William McCarthy of Delmar, an aide to Gov. George Pataki, was named by the governor to fill a vacancy on the state Supreme Court for the Third Judicial District based in Albany.
"[Democrat Candidate] Gilpatric in the race this year, it appears all but certain that the two seats will be filled by state Supreme Court Judge William McCarthy, a Republican, and Anthony Cardona, presiding justice of the Appellate Division, a Democrat. Until Tuesday, the three-way battle for the two state Supreme Court seats was promising to make the political parties' judicial nominating conventions, held between Sept. 21-27, contentious. Gilpatric and Cardona both wanted the Democratic line, but many in the parties would have preferred a Democratic and Republican cross-endorsement of McCarthy and Cardona. McCarthy, a former counsel to Gov. George Pataki, had the GOP and Conservative Party lines all but sewed-up."
"But if the Republicans have their way----the strong Democratic challenger would be removed not only from the race but from the bench, leaving only the incumbents as shoo-ins.
In what has been described as a bizarre incident in Kingston City Court last week, Judge James P. Gilpatric, 52, a Democrat, was temporarily removed from the bench and sent home after court officers said he was acting strangely and reported him to the other city court judge, Republican Edward Feeney.
Feeney claims that Gilpatric had a “slight smell of alcohol” on him.
Gilpatric denies having imbibed any alcohol the day of court but admits he had had a “few drinks” the night previous. He also reportedly has diabetes and says he may have had an allergic reaction to medication that he was taking.
We find the timing of a Republican challenge to Gilpatric’s fitness for the bench highly suspect.
Gilpatric is in the middle of a hotly contested race for a seat on the state Supreme Court. His opponents are Anthony Cardona, presiding justice of the Appellate Division, Third Department who is seeking reelection with Democratic backing; and William McCarthy, former counsel to GOP Gov. George Pataki who appointed McCarthy to the Supreme Court in June to replace Justice Thomas Keegan who retired.
McCarthy of Delmar has the Republican and Conservative lines and wants the Independent line too as do both Cardona and Gilpatric.
Gilpatric was only off the bench for less than 48 hours and returned to his duties after meeting with district administrative judge George Ceresia for the Third Judicial District.
Oh, yeah, wouldn’t that be
convenient for the Republicans.
Then Pataki’s two candidates would automatically be assured seats on the
Supreme Court. The Incumbent
Protection Plan is alive and well in
Gee, is it just a coincidence that Pataki is scheduled to be a special guest Monday, Sept. 13 at the Fort Orange Club at a $500 a head fund raiser for his former counsel McCarthy?
The American Judiciary is degenerating to the level common in the banana republics of the world.
Judiciary should be free from politics
By Chuang Pei-chang ²ø¨Ø¼ý
Sunday, Mar 12, 2000,Page 8
Chuang Shen-yuan (²ø²`²W), the judge presiding over the Kuang San financial scandal (¼s¤T®×) case, searched former Legislative Yuan Speaker Liu Sung-fan's (¼BªQÃ¿) residence a few weeks ago, triggering controversies over judicial independence. Yang Jen-shou (·¨¤¯¹Ø), secretary-general of the Judicial Yuan (¥qªk°|), said a legitimate search should have taken the timing of the search into consideration. Some judges criticized Chuang for being insufficiently sensitive to political issues.
What matters most about a judge is morality. Chuang is highly regarded for his moral character. Even Lin Chih-chung (ªL§Ó©¾), an attorney of Kuang San Group Chairman Tseng Cheng-jen (´¿¥¿¤¯), said Chuang "has no political character." From this viewpoint, we can exclude the assumption that Chuang is a brown-noser who carries out political persecution for the KMT. The uproar over the incident was basically the result of a "lack of political sensitivity." Chuang failed to notice the timing problem, resulting in the inappropriate linkage between the judicature and politics.
Is a "lack of political sensitivity" a defect? Should a judge be alert to political timing while investigating a case?
Taiwan's judicature lacks public credibility mainly because judges are too politically sensitive and are too aware of timing. Their political sense is so good that they dare not punish corrupted government officials. They are so concerned about timing that there is judicial leniency during election period. Therefore, "get elected or go to jail (·í¿ï¹LÃö¸¨¿ï³QÃö)" has become a common dictum and we have dozens of legislators standing trial, their punishment having been delayed for as much as 10 years. And that is also why gangsters are able to bid for official positions and take control of politics.
People in the Taiwan hate "black gold politics." They criticized the judiciary for not being independent, but they also blamed Chuang for his poor political sense. Aren't they contradicting themselves?
That Taiwan's judicature is not independent is well-known, but it is not Chuang's fault. He was just made the scapegoat. Because his fellow colleagues are too aware of how to ride the tide of their times, Chuang, who insists on judicial independence, has been branded as a political hitman. Because his colleagues fail to take a firm stand on justice, Chuang's insistence becomes selective justice.
If those who know how to ride the tide of his times are encouraged and the person who has poor political sense is thrown into the pit, then judicial independence will always be a slogan.
The following Memorandum of Law was Submitted during the Trial by Plaintiff Mark Ferran to Judge William McCarthy (and to Defendants' Attorneys) in protest of his Orders excluding the transcribed (sworn) testimony (portions of the trial transcript) of Defendant John Basolt from being used AGAINST defendant John Basolt:
The Prior (Sworn) Statement of a Party is Clearly Admissible Against Him
as an Admission of a Party-Opponent
New York CPLR 3117 and 4517 etc. are “Statutory Hearsay Exceptions” [Not a basis for excluding a Defendant's own prior statements when offered Against Him.]
“At this moment the King, who had been for some time busily writing in his note-book, cackled out `Silence!’ and read out from his book, `Rule Forty-two. All PERSONS more than A mile high to leave the court.’
Everybody looked at Alice.
`I’m not a mile high,’ said Alice.
`You are,’ said the King.
`Nearly two miles high,’ added the Queen.
`Well, I shan’t go, at any rate,’ said Alice: `besides, that’s not a regular rule: you invented it just now.’
`It’s the oldest rule in the book,’ said the King.
`Then it ought to be Number One,’ said Alice.
The King turned pale, and shut his note-book hastily. `Consider your verdict,’ he said to the jury, in a low, trembling voice.”
Alice's Adventures in Wonderland by Lewis Carroll http://www.bookrags.com/ebooks/11/51.html
CPLR 3117 and CPLR 4519, etc. are “statutory hearsay exceptions”
Supreme Court, Monroe County, November 13, 2003
The case law and secondary authorities uniformly recognize that New York’s various statutory hearsay exceptions are independent grounds for the admission of matter that would otherwise be excluded by the Hearsay rule (common law in New York, guided by FRCP). Prior (sworn) Testimony of a Party in the present civil action is Admissible Against Him because it falls within the Admissions of Party Opponent Exception to Hearsay.
“In Robinson, [657 N.Y.S.2d 575, 579 (1997)] the New York Court of Appeals, N.Y.S.2d at 577-78 [a]cknowledg[ed] that the evidence [that] was inadmissible under New York's "prior testimony" exception to the rule against hearsay, … could nevertheless be admitted at trial because it [was WITHIN an OTHER EXCEPTION to the rule against hearsay].” (SOUTHERN DISTRICT OF NEW YORK) http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-08070.PDF
(Supreme Court, Monroe County, November 13, 2003) it was decided that “testimony … not … within the provisions of CPLR 3117” would Still be Admissible if it were an Admission of a Party Opponent (e.g., an Adoptive Admission).
At the Summary of Evidence Law at:
(copied below) each of CPLR 4517 (for prior Trial testimony ) and CPLR 3117 (for Deposition testimony of a witness ) are characterized simply as being two among many Exceptions to the rule against Hearsay. There is nothing to indicate that such statutes are a Positive Bar to the Admission of prior statements of a party in the present action given in the form of Trial or Deposition. The total absurdity of the proposition that unsworn statements of a Party are admissible against Him in a civil action but that sworn statements by a Party are Not is simply too obvious to be explained to its proponents in civil and polite words. Suffice it to say that the fact that the proposition that the Prior Sworn Statements of a Defendant that are material and relevant are inadmissible AGAINST HIM, has been candidly asserted and soberly sustained raises serious questions as to the fitness and competences of its proponents to Practice Law in any capacity and undermines public confidence in the courts.
The Plaintiffs should have been freely permitted to read the prior (sworn) statements of John Basolt (Questions and His Answers) into evidence because they are “Admissions of a Party Opponent”. See Plaintiffs’ Separate Memorandum of Law on “Admissions of a Party Opponent”. The closest thing pleaded resembling "a defense" to the Plaintiff’s Trespass claims are the following statements of Defendant John Basolt which resemble some sort of “ALIBI” defense: “JOHN BASOLT is not a proper Party” paragraph 5. “Plaintiffs’ claims are frivolous and completely devoid of merit.” These limited “defenses” imply that the only issues to be tried are whether John Basolt is the person who entered (and damaged) plaintiffs’ land, and what are the plaintiffs’ damages.
The statements that Defendant John Basolt made in his attempt to get rid of the Plaintiff Mark Ferran (so that John Basolt could steal the Smith Property and the Ferrans’ roadway without resistance) are ADMISSISIONS OF A PARTY OPPONENT AND ARE MATERIAL AND RELEVANT:
Basolt’s (swornd) statements ADMITTED that:
John Basolt operated his Log Skidder on the Plaintiff’s roadway (bridge etc.) in March of 2001 (e.g., before Plaintiffs erected the Chain across the roadway); That on April 16 and April 17, John Basolt walked onto the Plaintiff’s land and removed Plaintiff’s tire-spikes. That on April 16 and April 17, John Basolt specifically intended to operate his skidder onto Plaintiff’s roadway (and bridge) in defiance of Plaintiffs’ ORDERS that he keep off of that roadway and keep out of Plaintiffs’ land. (This intention of John Basolt was the basis of the charge that Mark Ferran had “recklessly endangered property” (i.e., John Basolt’s Skidder’s tires) by disposing tire-spikes behind Plaintiffs’ signs and chain);
In The Trial Transcript John Basolt further Admits that on April 17, 2001 he received a certain written ORDER to “KEEP OUT” from Mark Ferran; and that instead of complying with that ORDER, he immediately sought further facilitation for his intended crimes from members of the State Police, who thereafter aided and abetted him in his criminal enterprises (acting under the false impression that John Basolt had already “purchased” the Smith Parcel and the mistaken view that the owner of such parcel necessarily had a “right of way” or “easement” over Plaintiffs’ private roadway-a former public highway).
The Law of Evidencre clearly required the introduction into evidence the prior (sworn) statements of John Basolt AGAINST HIM.
The hearsay rule is actually two separate rules, namely, evidence which is hearsay is inadmissible unless there is an exception which is applicable. The rule is premised on a recognition that hearsay evidence itself lacks sufficient reliability or trustworthiness to be admissible, but there are instances in which the circumstances surrounding the making of the hearsay statement assure sufficient reliability or trustworthiness to warrant its admissibility.
Hearsay may be defined as a statement - an oral or written assertion, or non-verbal conduct intended as an assertion - made by a person other than while testifying at a trial or proceeding which is offered in evidence to prove the truth of the matter asserted. Expressed another way, it is evidence which seeks to establish the existence of a fact based not upon the witness's own personal knowledge or observation but on what someone else said. An example is: W, a witness, testifies as to what B said to W about D, a defendant at the trial, namely that B, who is not present to testify, saw D steal a car. This testimony is being offered to establish that D stole the car, the crime for which D is being tried. Such testimony would be barred by the hearsay rule. ...
There are many hearsay exceptions that are recognized in New York law. They are recognized in the common law, contained in Article 45 of the CPLR as well as various statutes in the consolidated laws. A few significant ones will be mentioned here.
It is important to stress that if the evidence is hearsay, it is inadmissible, unless it satisfies one of the exceptions. Furthermore, if there are several links in the chain of hearsay (e.g., A told B, who repeated it to C, who then passed it on to D), each link will have to be independently justified under an exception.
An admission is a statement or act which amounts to the affirmance of some relevant fact, where such affirmance operates against the interest of the party making it or doing it. It is receivable only against the party who made it. A witness may testify to a party's admissions because it is generally regarded that such admission is reliable, i.e., a party would not say things about himself/herself unless they were true.
Where the act or statement of a party is received as an admission, the party against whom it is admitted has the right to offer an explanation. The weight of an admission is for the trier of fact. Thus, the party may testify that the statement was made through mistake, or that it was made without any personal knowledge, and the trier of fact may credit that testimony.
An admission may be by silence when the person hears and fully comprehends the force and effect of the words spoken and when he/she is at full liberty to reply thereto and would naturally be expected to deny it if he/she considered it false. No presumption of acquiescence would arise if the person at the time of the statement was asleep, intoxicated, deaf, unable to fully understand the language used, or incapacitated or in any way deprived of the freedom or opportunity to reply.
There are also judicial admissions, formal or informal.
Examples of a formal judicial admission are admitting the genuineness of a paper or photograph; admission under an agreed state of facts or a stipulation (unless relieved therefrom by the court); and, facts admitted by the pleadings (complaint, answer, reply). Such admissions are conclusive of the facts admitted in the action in which they are made, unless a court orders otherwise. An informal judicial admission may be facts incidentally admitted in the course of a trial in the same or another case or facts admitted in a deposition or affidavit. Such admissions are not conclusive.
Statements made by a party's employee or agent are receivable against the party as the party's admission only if they were made within the scope of the employee's or agent's authority, i.e., when the statement was authorized to be made by the employer, expressly or impliedly.
■ Business Records
Under New York's business records exception, which is codified in CPLR 4518, any writing or record, entry, memorandum or any act, transaction, occurrence or event is admissible in evidence as proof of said act, occurrence or event, if it was made in the regular course of any business, * * *
■ Prior Testimony
Under CPLR 4517 prior testimony by a witness in an action who is now unavailable to testify is admissible provided such prior testimony was under oath and subject to cross-examination and was on the same subject matter in a prior proceeding involving the same parties. Deposition testimony of a witness is not admissible under this statute but will usually be admissible under CPLR 3117. Interestingly, testimony taken at administrative proceedings is not covered by CPLR 4517. [See, Fleury v. Edwards, 14 NY2d 334, 251 NYS2d 647 (1964)].
“Both Mr. Froehlich's deposition testimony and affidavit represent out-of-court statements, which plaintiff, in the pending matter, would propose to offer into evidence for the truth of the opinions asserted therein. For example, counsel for plaintiff cites one portion of the affidavit, wherein Mr. Froehlich stated that mechanics who inspected and repaired brake linings were exposed to concentrations of asbestos fibers in excess of acceptable air quality standards. Thus, the court would agree that deposition testimony and affidavit clearly constitute hearsay, and, absent an exception, should not be admissible at trial.
In regard to the defendants, other than General Motors Corporation, there is no exception to the hearsay rule, which could arguably support admission of Mr. Froehlich's deposition testimony or affidavit. Although General Motors Corporation was a party, the Ohio proceeding did not involve the same plaintiff or the same subject matter, and the testimony of Mr. Froehlich would not come within the provisions of CPLR 3117 pertaining to the use of depositions at trial. Counsel for the plaintiff contends that Mr. Froehlich's affidavit and deposition testimony are, nevertheless, admissible under New York law as adoptive admissions by General Motors Corporation.
In Kirk v Raymark Indus., Inc. (61 F3d 147 [3d Cir 1995]), the court addressed this very issue, and rejected the idea that an expert witness called to testify on behalf of a party in one case may later be used against the same party in unrelated litigation, on the basis that such testimony constitutes an admission by a party, unless there is a finding that the witness was actually an agent of the party and authorized to speak on behalf of the party. In its decision, the court reasoned that because an expert witness is required to testify impartially within their field of expertise, such expert witness cannot be an agent under rule 801 (d) (2) (C) of the Federal Rules of Evidence, which provides that a declarant be an agent of the party opponent against whom an admission is offered, unless subject to the client's control in giving their testimony. Furthermore, the court stated that because an expert witness is not normally subject to the control of a party, whether in regard to consultation or testimony, such an expert witness should not be deemed an agent. This court would reach the same conclusion based upon state evidentiary principles.
The Court of Appeals has determined that the proponent of hearsay evidence must establish the applicability of a hearsay rule exception, which, in the case of admissions, would include proof that an employee, for example, was actually authorized to make a statement in order for it to be binding upon their employer in the context of a legal action (Tyrrell v Wal-Mart Stores, 97 NY2d 650 ). Further, the burden is placed upon the proponent to establish the reliability of any statement, which would otherwise fall within one of the exceptions to the hearsay rule (Nucci v Proper, 95 NY2d 597 ).[FN*]
Statements made by a person, who is not otherwise an agent or authorized to speak on behalf of a party, may be considered as adoptive admissions if the direct or circumstantial evidence clearly indicates that the party acknowledges and assents to such statements (People v Campney, 94 NY2d 307 ). In the pending case, the fact that Mr. Froehlich was retained by General Motors Corporation and rendered certain expert opinions, both in deposition testimony and an affidavit, does not make him an agent or authorized to speak on behalf of such party, for the policy reasons discussed in Kirk. Further, in this court's opinion, the fact that counsel for General Motors Corporation drafted the affidavit, which Mr. Froehlich subsequently signed, is not circumstantially indicative of an adoption of his statements as admissions by General Motors Corporation.
Accordingly, both the deposition testimony and affidavit should be excluded as hearsay, and it becomes unnecessary to address the issues involving the applicability of the aforementioned protective orders.
Supreme Court, Monroe County, November 13, 2003