Civil Court of the City of New York, Bronx County, October 5, 2021

Rosenblum & Bianco, LLP (Tracy Boshart of counsel) for Sedgwick Avenue Dignity Developers LLC and others, respondents.

NYC Department of Housing Preservation and Development (Symone Sylvester of counsel) for Department of Housing Preservation and Development of the City of New York, respondent.

TakeRoot Justice (Rajiv Jaswa, Sadia Rahman and Allen Joslyn of counsel) for petitioner.

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 No. 15 is a January 27, 2021 transcript of a voicemail purportedly left by a mold remediation company worker. Petitioner's exhibit Nos. 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 v Proper, 95 NY2d 597, 602 [2001]; People v Caviness, 38 NY2d 227, 230 [1975]; Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, 392 [2d 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 [Fam Ct, Kings County 2011], citing People v Settles, 46 NY2d 154, 166 [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., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d {**73 Misc 3d at 688}318, 324 [1974]; Giardino v Beranbaum, 279 AD2d 282 [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 Mgt. LLC, 105 AD3d 421, 422 [1st Dept 2013].) Indeed, anyone who hears an out-of-court statement may testify to it if it is offered to prove the statement was made. (See e.g. Matter of Oberle v Caracappa, 133 AD2d 202, 203 [2d Dept 1987]; Holyoke Mut. Ins. Co. v B. T. B. Realty Corp., 83 AD2d 603, 605 [2d Dept 1981]; Benitez v Whitehall Apts. Co., LLC, 19 Misc 3d 1120[A], 2008 NY Slip Op 50779[U],{**73 Misc 3d at 7} *7 [Sup Ct, NY County 2008].)

Here, petitioner did not offer the voicemail transcript and text messages to prove the existence of mold, or even that a person named "Danny" in fact worked for Enviotech Mold Removal. Per petitioner, they are offered only to show that the statements contained therein were made. (See Quinche v Gonzalez, 94 AD3d 1075 [2d Dept 2012].)

As such, the offered statements are not hearsay, and petitioner need not establish any exception to hearsay.^[FN*]

Petitioner's veracity, of course, may be tested in cross-examination in the normal course. (See Matter of Oberle v Caracappa, 133 AD2d at 203; Stern v Waldbaum, Inc., 234 AD2d 534, 535 [2d Dept 1996].) After cross-examination, the court will determine whether to believe or disbelieve that the out-of-court statements were made. However, that would be a question of credibility, not admissibility. (See Benitez v Whitehall Apts. Co., LLC, 19 Misc 3d 1120[A], 2008 NY Slip Op 50779[U],{**73 Misc 3d at 7} *7 [2008].)

Furthermore, courts are particularly lenient in admitting testimony of out-of-court statements when offered to establish notice. (See Wynn v Little Flower Children's Servs., 106 AD3d 64, 71 [1st Dept 2013]; Splawn v Lextaj Corp., 197 AD2d 479, 480 [1st Dept 1993]; Gelpi v 37th Ave. Realty Corp., 281 AD2d at 392; Dawson v Raimon Realty Corp., 303 AD2d 708, 709 [2d Dept 2003]; Quiroa v Ferenczi, [*3]77 AD3d 901 [2d Dept 2010]; Stern v Waldbaum, Inc., 234 AD2d at 535.) This is true even where the accuracy of the statement has not been established.{**73 Misc 3d at 689}

Given the above, the respondents' objection to petitioner's exhibit Nos. 15, 16 (a) and 16 (b) is overruled and they are admitted into evidence.