Arkwright-Boston Manufacturers Mutual Insurance v. R-B Security Service, Inc. , 63 A.D.2d 801 ( 1978 )

Appeal from an order of the Supreme Court at Special Term, entered September 21, 1977 in Ulster County, which denied plaintiff’s motion for summary judgment on the issue of liability. The sole issue presented upon this appeal is whether or not a theft by an employee of the defendant, R-B Security Service, Inc., is established where the plaintiff relies upon an affidavit by an admitted 13-year-old thief, now deceased, who stated therein that an employee of the said defendant participated in certain thefts with the declarant. Assuming that the declaration against interest would be admissible in evidence to establish that a theft occurred as a declaration against penal interest (People v Brown, 26 NY2d 88) its admissibility as to participation by the employee is not established (see Richardson, Evidence [10th ed], § 257, p 225; § 260, p 227). Further, the record establishes that at least some of the facts alleged in the affidavit as to the participation of the employee are controverted as to accuracy and, accordingly, there are, inter alia, issues of fact as to the participation of the employee in the thefts and consequent liability of his employer for breach of contract. Upon this record Special Term did not abuse its discretion in denying the motion and it thereby requires that the record be more fully developed. Order affirmed, with costs. Mahoney, P. J., Sweeney, Staley, Jr., Larkin and Herlihy, JJ., concur.