Torres v. Sedgwick Ave. Dignity Developers

• Decision Date: 05 October 2021
• Parties: Jason Torres, Petitioner, v. Sedgwick Avenue Dignity Developers LLC, JOHN WARREN & MHR MANAGEMENT INC., Respondents-Owners, and DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Co-Respondent.
• Court: New York Civil Court

2021 NY Slip Op 21267

Jason Torres, Petitioner,
v.
Sedgwick Avenue Dignity Developers LLC, JOHN WARREN & MHR MANAGEMENT INC., Respondents-Owners, and DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Co-Respondent.

Civil Court of the City of New York, Bronx County

October 5, 2021

TakeRoot Justice Rajiv Saswa, of Counsel Attorneys for Petitioner

Sadia Rahman, of Counsel

Allen Joslyn Rosenblum & Bianco, LLP Tracy Boshart, Esq. Attorneys for Respondents

NYC Department of Housing Preservation and Development Respondent Symone Sylvester, of Counsel

SHORAB IBRAHIM, JUDGE.

During the most recent trial date, the petitioner attempted to introduce certain "recordings" into evidence. Respondents objected and the court reserved decision.

Marked as petitioner's exhibit number 15 is a January 27, 2021 transcript of a voicemail purportedly left by a mold remediation company worker. Petitioner's 16(a) and 16(b) are text messages between petitioner and the same individual. Petitioner laid foundation and offered them into evidence.

Respondents object to the items on hearsay grounds. Petitioner counters that the statements are not offered for the truth of the matter asserted, but only for the fact they were made.

Hearsay is an out-of-court statement offered for truth of the matter asserted. (Nucci ex rel. Nucci v Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593 [2001]; People v Caviness, 38 N.Y.2d 207, 230, 379 N.Y.S.2d 695 [1975]; Gelpi v 37th Ave. Realty Corp., 281 A.D.2d 392, 392, 721 N.Y.S.2d 380 [2nd Dept 2001]).

Generally, hearsay evidence is "inadmissible as a matter of due process and fundamental fairness, because the party against whom the hearsay statement is offered would otherwise be denied the opportunity to cross-examine the absent declarant to test his or her credibility or capacity to observe, remember or relate." (Devon S. v Aundrea B.-S., 32 Misc.3d 341, 343, 924 N.Y.S.2d 233 [Fam Ct, Kings County 2011], citing People v Settles, 46 N.Y.2d 154, 166, 412 N.Y.S.2d 874 [1978]).

However, it is settled law that hearsay exists only when an out-of-court statement is introduced for the truth of the matter asserted in that statement, not when such testimony is introduced to demonstrate that the statement was made. (see Matter of Bergstein v Board of Educ., 34 N.Y.2d 318, 324, 357 N.Y.S.2d 465 [1974]; Giardino v Bernbaum, 279 A.D.2d 282, 720 N.Y.S.2d 3 [1st Dept 2001]).

Thus, if offered solely for the fact that the statement was made, the statement is not inadmissible hearsay. (DeSario v SL Green Management LLC, 105 A.D.3d 421,...