Leser v. U.S. Bank National Association

Filing 177

ORDER re Order on Motion in Limine. For the reasons stated in the within Memorandum and Order, and for the reasons already explained by the court in its Order dated 12/27/12, plaintiff's remaining objections to defendant's proposed trial exhibits #126 are granted in part and denied in part in accordance with the accompanying Memorandum and Order. Ordered by Judge Kiyo A. Matsumoto on 12/29/2012. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
ABRAHAM LESER
Plaintiff,
-against-

09-CV-2362 (KAM)(MDG)

U.S. BANK NATIONAL ASSOCIATION,

MEMORANDUM & ORDER

Defendant.
-----------------------------------X
U.S. BANK NATIONAL ASSOCIATION,
Counterclaim Plaintiff,
v.
ABRAHAM LESER,
Counterclaim Defendant.
--------------------------------x
KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:
Presently before the court are plaintiff/counterclaim
defendant Abraham Leser’s (“Leser” or “plaintiff”) remaining
objections to defendant/counterclaim plaintiff U.S. Bank
National Association’s (“USB” or “defendant”) proposed trial
exhibits. 1

(ECF No. 175, Plaintiff’s Letter Objections dated

12/26/12 (“Obj.”).)

The court has also received and reviewed

USB’s response to plaintiff’s objections.

(ECF No. 176,

Defendant’s Response dated 12/27/12 (“Resp.”).)

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For the reasons

The parties’ familiarity with the facts of this case is presumed. The court
will employ in this Memorandum and Order the same abbreviations it previously
used in its Memorandum and Order, dated September 25, 2012, denying summary
judgment to both parties. (ECF No. 142.)

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that follow, plaintiff’s remaining objections to defendant’s
proposed exhibits are denied in part and granted in part.

The

court’s rulings 2 with respect to plaintiff’s remaining objections
are set forth below.
I.

Objection to “Documents relating to Robert Baier’s
writings and testimony in other matters”
Plaintiff objects to several of defendant’s proposed

exhibits relating to materials challenging plaintiff’s expert,
Robert Baier, with regard to his writings or statements in other
legal matters, including testimony taken in and court orders
from other matters.

(Obj. at 1.)

Plaintiff agrees that

defendant may cross-examine Mr. Baier with these materials, but
objects to defendant’s ability to admit the same into evidence
because they constitute “irrelevant collateral matters.”

(Id.)

Defendant maintains that, depending on Mr. Baier’s testimony, it
may seek to admit some of these documents.

(Resp. at 2.)

The court reserves its ruling on specific documents
until Mr. Baier testifies on direct and cross-examination, but

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Plaintiff also continues to assert his authenticity objections to the
“cropped signatures” in defendant’s proposed exhibits K1 and L1 and to the
loan transaction documents, which also “purportedly contain his signatures”
and the “defective/false notarizations of his supposed signatures.” (Obj. at
2.) Defendant responds that the documents for the signature exemplars that
it intends to use at trial have been produced and all issues have been
resolved. (Resp. at 2.) In addition, the court already ruled on the
admissibility of the loan transaction documents. Accordingly, the court does
not believe a further ruling is necessary on defendant’s proposed Exhibits K1
and L1 (the exemplars) and the loan transaction documents. (See also Order
dated 12/27/12.)

2

defendant’s proffered documents relevant to Mr. Baier’s
qualifications as an expert, his adherence to any accepted
standards and procedures for forensic document examiners, his
prior testimony and court decisions regarding his
qualifications, and documents regarding his training and
knowledge as an expert are likely to be admitted.

Additionally,

Mr. Baier’s previous statements made by him “under penalty of
perjury, at a trial, hearing, or other proceeding or in a
deposition,” Fed. R. Evid. 801(d)(1)(A), would be admissible
when presented and offered in accordance with Federal Rules of
Evidence 613(b) and 801(d)(1)(A).

Documents used to cross-

examine Mr. Baier that are not otherwise admissible under the
Federal Rules of Evidence will not be admitted into evidence.
II.

Objection to “Robert Lovy orders”
Plaintiff acknowledges that four particular court

orders and judgments regarding Mr. Lovy in this case,
defendant’s proposed exhibits D13, I13, K13, and N13, “may be
used during examination of Mr. [Robert] Lovy.”

(Obj. at 2.)

Defendant’s proposed exhibit D13 is a minute entry and order
dated March 2, 2011.

The other three exhibits are orders and a

judgment of this court finding Robert Lovy in civil contempt for
his failure to comply with a deposition subpoena and imposing
sanctions on him.

Defendant argues that these documents are

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relevant to Mr. Lovy’s credibility, which is at issue in this
case.

(Resp. at 2.)
The court rules that exhibit D13, the minute entry and

order dated March 2, 2011, should not be admitted pursuant to
Federal Rule of Evidence 401, because it does not make any fact
of this case “more or less probable.”

Fed. R. Evid. 401(a).

Depending on Mr. Lovy’s testimony, defendant may be permitted to
use the other three documents in this category, Exhibits I13,
K13, and N13, however, to cross-examine Mr. Lovy.

Further,

although plaintiff posits that admission of the court orders and
judgment “could” put the court in the position of “being a
witness” (see Obj. at 2), the court does not intend to become a
witness if defendant seeks to introduce them, and notes the
orders and judgment are part of the record in this case.
III.

Objection to Defendant’s Proposed Exhibits F3 and Z4
Plaintiff objects to two proposed defense exhibits, F3

and Z4, on essentially the same grounds, and thus the court will
address them together.

The court will conditionally admit

defendant’s proposed exhibits F3, an email dated March 5, 2007,
from Eli Verschleiser to defendant’s representatvies, and Z4, a
letter dated July 27, 2007 from Louis Lipsky, Esq. to
defendant’s representatives, stating that he represents
plaintiff and others in the VTE loan transaction, subject to
defendant’s ability to satisfy the balance of Federal Rule of
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Evidence 801(d)(2)’s requirements at trial.

In the event that

defendant is not able to do so, however, defendant’s proposed
exhibits F3 and Z4 may be admitted for other non-hearsay
grounds, including, but not limited to, showing their effect on
their respective recipients, or for identification, agency and
knowledge, and not for the truth of the matters asserted
therein.
First, plaintiff objects to defendant’s proposed
introduction of an email from Eli Verschleiser to Walter Whitt
(of USB) and James Freedman (counsel for USB) dated March 5,
2007, in which Mr. Verschleiser appears to transmit statements
from Leser to the email’s recipients.

(Obj. at 2.)

Plaintiff

notes that Leser himself was not copied on this email, and
objects that the email contains inadmissible hearsay.
3.)

(Id. at

Additionally, plaintiff argues that this email does not

“establish the creation of an agency relationship,” so as to
bring it within the purview of Federal Rule of Evidence
801(d)(2), for a party admission of some kind.

(Id.)

Defendant

contends that the email is admissible under several theories:
(i) the email is a business record of defendant, because it was
sent to defendant’s employees in the course of their regular
business; (ii) the email is admissible as one of Leser’s own
statements under Fed. R. Evid. 801(d)(2) (although defendant
does not specify a subsection of Rule 801(d)(2) that it believes
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applies); (iii) the email is admissible not for the truth of the
matter asserted therein, but to show its effect on the
recipients and USB’s resulting belief of Leser’s knowledge and
involvement; and (iv) the email is relevant to whether Mr.
Verschleiser was, in fact, Leser’s agent, which is key to
several of defendant’s liability theories and defenses.

(See

Resp. at 3.)
Similarly, plaintiff objects that defendant’s proposed
exhibit Z4, a letter dated July 27, 2007 from Philadelphia-based
attorney Louis Lipsky, Esq., appearing to set forth Mr. Lipsky’s
representation of Leser as an individual as well as the VTE
Borrowers in connection to the VTE loan transaction, is also
hearsay and does not constitute a party admission under Federal
Rule of Evidence 801(d)(2).

(Obj. at 3.)

Plaintiff further

asserts that it has not been established that Mr. Lipsky was
either an authorized representative or employee of Leser, such
that Mr. Lipsky’s statements can be admitted as Leser’s own, and
that Leser will testify that Mr. Lipsky did not actually
represent Leser individually in connection with the VTE loan
transaction.

(Id.)

In response, defendant argues that the

Lipsky opinion letter should be admitted as a business record of
Mr. Lipsky’s law firm, and also notes that the opinion letter is
highly probative of whether Mr. Lipsky had apparent authority to

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act on Leser’s behalf in connection with the VTE loan
transaction.

(Resp. at 3-4.)

As an initial matter, the court notes that although
both parties generally cite to Rule 801(d)(2), neither party has
specified whether these exhibits would qualify under
801(d)(2)(C), which applies to statements by a party’s
authorized agents with “speaking authority”, or 801(d)(2)(D),
which applies to statements of a party’s agents made during
their agency relationship concerning a matter within the scope
of their relationship.
“The relevant inquiry in Fed. R. Evid. 801(d)(2)(C)
situations is whether the person making the statements had the
authority to speak on a particular subject on behalf of the
party the admission is to be used against.”

Penguin Books

U.S.A., Inc. v. New Christian Church of Full Endeavor, Ltd., 262
F. Supp. 2d 251, 260 (S.D.N.Y. 2003) (citing Wright & Miller,
30B Fed. Prac. & Proc. Evid. § 7022; Precision Piping and
Instruments, Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d
613, 619 (4th Cir. 1991)).

“The courts’ inquiries generally

require that a person making the statement be an agent of the
party-opponent against whom the admission be offered.”
(citing Wright & Miller, § 7022).

Id.

By contrast, 801(d)(2)(D)

only requires that “‘the employee/agent has made the statements
within the scope of employment’” or agency relationship.
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Id.

(quoting Precision Piping, 951 F.2d at 619–20).

Therefore,

under 801(d)(2)(C), “the individual must have had specific
permission to speak on a subject, such as a contract, as opposed
to in a Rule 801(d)(2)(D) inquiry where the individual only had
to have general authority of the business area the contract
falls under.”

Id.

Under 801(d)(2)(C), a party may bestow

speaking authority upon an individual either “expressly or
implicitly.”
at 801–60).

Id. at 260 (citing Weinstein on Evidence, § 801.32
The court thus examines whether a person has

speaking authority on the particular subject in question.

See

id.
With respect to the foundation required for Fed. R.
Evid. 801(d)(2)(D) admissions, the Second Circuit has held that
“[a] sufficient foundation to support the introduction of
vicarious admissions therefore requires only that a party
establish (1) the existence of the agency relationship, (2) that
the statement was made during the course of the relationship,
and (3) that it relates to a matter within the scope of the
agency.”

Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 537

(2d Cir. 1992).

Although the foundational predicate for an

agency relationship “may be established by circumstantial
evidence,” id. at 538, the statements themselves are not alone
sufficient.

See Fed. R. Evid. 801(d)(2) (“The contents of the

statement shall be considered but are not alone sufficient to
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establish the . . . agency or employment relationship and scope
thereof. . . .”).
Furthermore, “[t]he authority granted in the agency
relationship need not include authority to make damaging
statements, but simply the authority to take action about which
the statements relate.”

Pappas, 963 F.2d at 538.

If an

employee/agent was “an advisor or other significant participant
in the decision making process that is the subject matter of the
statement,” the statements are considered within the scope of
the employment or agency relationship.
Supp. 2d at 261.

Penguin Books, 262 F.

Additionally, the speaker does not have to be

the “’final decisionmaker,’ but simply an advisor or significant
participant in the decision-making process.”

Id. (quoting U.S.

v. Rioux, 97 F.3d 648, 661 (2d Cir. 1996)).
In any event, whether the foundational predicate has
been established for admitting a statement under Fed. R. Evid.
801(d)(2)(C) or (d)(2)(D) “is preliminary matter to be
determined by the trial court.”

Id. (citing Hill v. F.R.

Tripler & Co., 868 F. Supp. 593, 597 (S.D.N.Y. 1994)).

“A

person’s statement that he was an agent of another may not
establish that relationship as an incontrovertible fact, but it
can help establish that that individual himself believed that he
was acting on another’s behalf and under another’s control.”
Cabrera v. Jakabovitz, 24 F.3d 372, 387 (2d Cir. 1994) (citing
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Slotkin v. Citizens Cas. Co., 614 F.2d 301, 316 (2d Cir. 1979)
(“‘[A] person can properly testify as to the facts which it is
alleged constitute his authority, and his testimony can be
introduced either by or against the alleged principal.’”).

The

trial judge’s scrutiny of the evidence regarding the purported
authority of a witness with respect to his or her purported
principal is a Fed. R. Evid. 104(b) inquiry and “the standard
that should be used is whether or not a juror could reasonably
find that the admission was made within the scope of
employment/agency or within the speaking authority.”

Penguin

Books, 262 F. Supp. 2d at 261 (citing O'Neal v. Esty, 637 F.2d
846, 851 (2d Cir. 1980)); see also Pappas, 963 F.2d at 537
(foundational predicate for an agency relationship “may be
established by circumstantial evidence”).
Additionally, Rule 801(d)(2) explicitly instructs
courts to consider the subject statements themselves when
determining if they were made under circumstances indicating
authority under (d)(2)(C) or an employee/agent relationship
under (d)(2)(D).

Fed. R. Evid. 801(d)(2).

Nevertheless,

“[t]alismanic language alone does not determine an agency
relationship.”

In re Nigeria Charter Flights Contract Litig.,

520 F. Supp. 2d 447, 461 (E.D.N.Y. 2007) (internal quotation
marks omitted).

Instead, “[c]ourts must look to the substance

of the relationship,” since agency depends upon “the existence
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of the required factual elements creating a fiduciary relation.”
Id.
Given these evidentiary principles, the court will reserve its
ruling on whether defendant’s proposed exhibits F3 and Z4 should
be admitted under Fed. R. Evid. 801(d)(2), or any other rule of
evidence, until the relevant witnesses testify and the
appropriate foundation is laid.
Moreover, these exhibits can also be admitted for
their effect on their recipients (USB’s representatives), not
for the truth of the matters asserted therein.

See, e.g.,

United States v. Gotti, 457 F. Supp. 2d 395, 397 (S.D.N.Y. 2006)
(“It is well established . . . that statements offered for their
effect on the listener are non-hearsay.’”).

“Out-of-court

statements are not hearsay if offered to show the context within
which parties were acting, or to show a party’s motive or intent
for behavior.”

Arista Records LLC v. Lime Group LLC, 784 F.

Supp. 2d 398, 420-21 (S.D.N.Y. 2011) (citing Weinstein’s Federal
Evidence, § 801.11[5]); see also United States v. Dupre, 462
F.3d 131, 136–137 (2d Cir. 2006) (email messages sent by third
parties to defendants were admissible to provide context for
email messages sent by defendants in response); United States v.
Garcia, 900 F.2d 571, 576 (2d Cir. 1990) (co-defendant’s
statement that the defendant seeking preclusion on hearsay
grounds sold “good crack” was not hearsay because it “was
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offered not to prove the truth of the matter asserted, but to
help the jury understand the context of the transaction”).

Out-

of-court statements are also not considered hearsay if used to
prove notice or knowledge.

Arista Records, 784 F. Supp. 2d at

421 (citing Cameron v. Cmty. Aid for Retarded Children, 335 F.3d
60, 65–66 (2d Cir. 2003)).

This result obtains even where, as

here, the contested statements also relate to the underlying
issues of the case.

See Spicer v. Pier Sixty LLC, 269 F.R.D.

321, 332 n.6 (S.D.N.Y. 2010) (admitting emails drafted by
defendant’s employees and sent to non-parties for their “effect
on the listener,” where emails contained statements regarding
defendant’s pricing and tipping policies, in an FLSA wage-andhour dispute), reconsideration denied (Oct. 13, 2010); Lambert
v. McCann Erickson, 543 F. Supp. 2d 265, 272 n.6 (S.D.N.Y. 2008)
(admitting defendant supervisor’s statement regarding
plaintiff’s work performance “for its effect on the listener” in
wrongful termination action); Slue v. New York Univ. Med. Ctr.,
409 F. Supp. 2d 349, 366, n.10 (S.D.N.Y. 2006) (admitting
statements with defamatory content in defamation action, not for
the truth of the matter asserted but “for the fact that they
were made and conveyed a defamatory implication to the
listeners).

Therefore, even aside from the agency questions

under Rule 801(d)(2) discussed earlier, these exhibits can still
be admitted for several non-hearsay purposes.
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The court will

thus admit defendant’s proposed exhibits F3 and Z4 for their
effect on the listener, and if defendant lays the proper
foundation, also discussed earlier, the exhibits may also be
admitted for their truth under Rule 801(d)(2).
IV.

Objection to Defendant’s Proposed Exhibits N3 and P7
Plaintiff objects to defendant’s proposed exhibits N3

and P7, organizational charts of the entities involved in the
loan transactions obtained from files of attorneys purporting to
represent plaintiff and/or the Borrowers, showing plaintiff
and/or the Borrowers to have an interest in the VTE and Seattle
loan transactions, on the same grounds: that defendant has not
established the authors of these documents and that the charts
constitute inadmissible hearsay with respect to the their
representations of Leser’s relationships to the Borrower
entities.

(Obj. at 3.)

Defendant asserts that these documents

are business records of the lawyers who represented the VTE and
Seattle Borrowers 3 and that plaintiff does not dispute their
authenticity.

(Resp. at 4.)

As an initial matter, defendant has not explicitly set
forth the foundation required to establish that these exhibits
are business records under Rule 803(6).

See Fed. R. Evid.

803(6) (requiring, inter alia, foundation that “the record was
3

As noted earlier, plaintiff argues that Mr. Lipsky, who is the source of
defendant’s proposed exhibit N3, did not represent him individually.

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made at or near the time by -- or from information transmitted
by -- someone with knowledge” to be a business record).
Nonetheless, because these exhibits were obtained from law firms
that represented the Borrowers, in which defendant may be able
to show plaintiff had an interest or that plaintiff controlled,
the court will likely admit these exhibits pursuant to Fed. R.
Evid. 801(d)(2) once the proper foundation is presented.
Additionally, as noted in connection with defendant’s proposed
exhibits F3 and Z4, these exhibits may also be admitted not for
the truth of the matters asserted therein, but for, inter alia,
their effect on their recipients, to show the understanding and
motives of defendant as it entered the loan transactions, and to
show the context of the loans and documents in question.
e.g., Arista Records, 784 F. Supp. 2d at 420-21.

See,

Whether these

exhibits will also be admitted for their truth will be
determined at trial.
V.

Objection to Defendant’s Proposed Exhibit Y12
Plaintiff finally objects to defendant’s introduction

of the complaint in a bankruptcy action involving the “Victory
Memorial Hospital,” arguing that this document is irrelevant
because it has no bearing on whether plaintiff signed the
personal guaranties at issue in this case.

(Obj. at 3.)

Defendant responds that this document may be relevant depending
on plaintiff’s testimony, because it sheds light on the
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circumstances under which plaintiff has entered into personal
guaranties.

(Resp. at 4.)

The court will reserve its decision on defendant’s
proposed exhibit Y12 until plaintiff testifies, i.e. when the
potential relevance, if any, of this document to plaintiff’s
credibility is revealed.

SO ORDERED.

Dated:

Brooklyn, New York
December 29, 2012
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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