Liberto v. Worcester Mutual Insurance

OPINION OF THE COURT Lazer, J. P. In this action to recover for a fire loss under a homeowners insurance policy, the carrier has raised the plaintiff’s alleged arson as a defense. To support this defense, the insurer offered evidence purporting to demonstrate plaintiff’s animosity toward his former wife as motivating the arson. Over plaintiff’s objection, the trial court admitted in evidence the entire contents of certain Family Court files relating to proceedings brought against the plaintiff by his ex-wife. The files included letters written to the Family Court by the ex-wife and by plaintiff’s daughter. The ex-wife’s letter accused Liberto of assaults and threats to kill her while the daughter wrote that plaintiff [478] “[doesn’t] act like a father, he acts more like an animal.” Neither of the writers was called as a witness. The carrier also adduced the testimony of a State Police investigator who declared that the police had investigated numerous complaints brought by the former wife accusing plaintiff of assault, harassment and disorderly conduct. Evidence of the incendiary origin of the fire was offered through the testimony of an expert. In response, plaintiff produced himself and three witnesses to attest to his presence away from the area of the house when the fire occurred. The jury found that the fire was the result of arson caused or produced by the plaintiff and judgment was entered in defendant’s favor. Among plaintiff’s principal contentions on appeal is his claim that the Family Court files were erroneously admitted in evidence because the mentioned letters were inadmissible hearsay. The carrier denies that the letters were hearsay and argues that they were offered not for the truth of their contents, but to establish that they were written and for the effect of their utterances on plaintiff’s state of mind. We find no merit in the carrier’s contention that the letters were admissible because their effect on plaintiff’s mind was relevant to the issue of his motive to burn the house. Unquestionably, one’s state of mind may be affected by the statements of others (see, e.g., Barbagallo v Americana Corp., 25 NY2d 655; Ferrara v Galluchio, 5 NY2d 16; People v Sutherland, 154 NY 345; see, also, Richardson, Evidence [Prince, 10th ed], § 205; 6 Wigmore, Evidence [Chadbourn rev, 1976], § 1789), but here no effort was made to demonstrate the effect of the letters on plaintiff’s state of mind. Indeed, it was not even shown that plaintiff knew of the wife’s letter, and while he had seen the daughter’s letter, he was not asked any questions concerning his feelings about that letter. It is apparent that the real purpose of the offer of the letters was the impermissible one of establishing plaintiff’s bad character. If plaintiff’s alleged threats and assaults upon his former wife were themselves relevant to his motive for arson, they could only be so if true. The letters were not offered for [479] their truth, however, and they could not have been received for that purpose, in any event, unless some exception to the hearsay rule existed which warranted their admission. The letters were not business records under CPLR 4518 (subd [a]) since the declarants were not under a duty to furnish them (see Matter of Leon RR, 48 NY2d 117, 122-123; Johnson v Lutz, 253 NY 124; Murray v Donlan, 77 AD2d 337, 342-343; Toll v State of New York, 32 AD2d 47), and they were not admissible as governmental records under CPLR 4518 (subd [c]) because that section merely dispenses with the need for an authenticating witness when certain governmental records and writings are introduced (see Matter of Quinton A., 68 AD2d 394, 399, revd on other grounds 49 NY2d 328). Admissibility under CPLR 4518 (subd [c]) is governed by the same standards as the general business record exception of CPLR 4518 (subd [a]) (see People v Gower, 42 NY2d 117; People v Howard, 79 AD2d 1064; People v Meyers, 72 Misc 2d 1003; Eighth Report of Judicial Conference to Legis, McKinney’s Session Laws of NY, 1970, pp 2795-2796; 5 Weinstein-Korn-Miller, NY Civ Prac, par 4518.26). The mere filing of the records certainly does not qualify them as business records (see Standard Textile Co. v National Equip. Rental, 80 AD2d 911). It is plain, then, that admission of the letters was prejudicial error. In the same vein, the State Police investigator’s testimony concerning the ex-wife’s complaints to the police also constituted impermissible hearsay evidence of character. It scarcely bears repetition that the character of a party may not be shown in a civil case to prove that he acted in conformity with it in a certain situation (McKane v Howard, 202 NY 181; Brennan v Commonwealth Bank & Trust Co., 65 AD2d 636; Richardson, Evidence [Prince, 10th ed], § 158). The insurer maintains, however, that the evidence of the former wife’s complaints to the police was not offered as to character but to demonstrate plaintiff’s motive for arson. Apart from any other evidentiary deficiency, the testimony was inadmissible on motive because it was double hearsay. The investigator did not personally receive the complaints but attained the knowledge only by looking at records made by other State Police employees who [480] received the oral complaints. The business records rule is not involved because no effort was made to offer the records. In view of our disposition, it is unnecessary to reach any failure of the trial court to instruct the jury as to the limited purpose of the “motive” evidence. No question concerning this failure was raised at the trial and none has been raised on appeal. Accordingly, there must be a reversal and a new trial.