(concurring in part and dissenting in part). I agree with the majority that plaintiff failed to establish that the employee in question had authority to speak on behalf of defendant and, accordingly, Supreme Court incorrectly ruled that her hearsay statement was admissible as an admission against defendant’s interests. Where I disagree with the majority is with their conclusion that the statement of the employee nevertheless was admissible because it constituted part of the res gestae.
As has been noted, the term res gestae is quite amorphous and presently is considered to encompass four distinct exceptions to the hearsay rule: declarations of present bodily condition, declarations of present mental state, excited utterances and declarations of present sense impressions (see, 6 Wigmore, Evidence § 1767, at 253-256 [Chadbourn rev 1976]; McCormick, Evidence § 288, at 686 [2d ed]; Fisch, New York Evidence § 994, at 569 [2d ed]). As correctly observed by the majority, the statement before us could only be considered as an exception to the hearsay rule under the excited utterance or, as the majority refers to it, the spontaneous declaration excep*773tion. However, in Loschiavo v Port Auth. (86 AD2d 624, affd 58 NY2d 1040), the Second Department explicitly ruled that statements made by an employee who assisted a victim after a fall did not come within the excited utterance exception to the hearsay rule. On appeal to the Court of Appeals, the entire first point of the plaintiffs’ brief was devoted exclusively to the excited utterance exception to the hearsay rule and the proposition that the employee’s statement was admissible under that exception. While the Court of Appeals did not expressly address that argument in its opinion, its affirmance of the Second Department’s determination implicitly rejected use of the excited utterance exception in such circumstances (accord, Sherman v Tamarack Lodge, 146 AD2d 767, 768, lv denied 74 NY2d 613). Accordingly, I would reverse Supreme Court’s judgment and order and grant defendant’s motion to set aside the verdict. Ordered that the judgment and order are affirmed, with costs.