Commercial Division Blog

Posted: February 27, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Evidence, Summary Judgment

Dead Man’s Statute Does Not Preclude Evidence Concerning Disputed Agreements On Summary Judgment

In an Opinion, dated January 24, 2023, in 35 W. Realty, LLC v. Booston, LLC, Index No. 653674/2015, Justice Margaret A. Chan denied Plaintiff’s in limine motion to preclude evidence concerning disputed agreements based upon CPLR § 4519, also known as the Dead Man’s Statute.  The Court explained: 

This statute is entitled "Personal transaction or communication between witness and decedent or mentally ill person" and provides:

Upon the trial of an action or the hearing upon the merits of a special proceeding, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person..., by assignment or otherwise, concerning a personal transaction or communication or a person deriving his title or interest from, through or under a deceased person...concerning a personal transaction or communication between the witness and the deceased person...except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the...deceased person is given in evidence, concerning the same transaction or communication.

(CPLR 4519).

The underlying purpose of CPLR 4519 is to protect decedents' estates from perjurious claims (Poslock v. Teachers' Ret. Bd. of Teachers' Ret. Sys., 88 NY2d  146, 152 [1996]; Sepulveda v. Aviles, 308 AD2d 1, 10 [1st Dept 2003]). Essentially, there are three elements in CPLR 4519 that pervades: (1) person 'interested in the event' may not testify in their own behalf against (2) "persons with a specified relationship to a decedent" (3) concerning a transaction or communication between the witness and the deceased person..." (In re Zalk, 10 NY3d 669, 675-676 [2008]).

In applying CPLR 4519 and examining the underlying purpose of the statute, plaintiff's motion for an order in limine under CPLR 4519 must be denied. The estate to be protected is decedent Phil Hill's estate. The testimony that plaintiff seeks to exclude would speak to the authenticity of the Disputed Amendment and Commission Agreement, to show that these documents are not forged. How this purported testimony of Booston's principals would harm Hill's estate is not clear as plaintiff fails to establish that the purported testimony would involve an examination of a witness "against the executor, administrator or survivor of a deceased person" as required by the statute (CPLR 4519; see In re Zalk, 10 NY3 at 679; 1504 Assocs., L.P. v. Wescott, 41 Misc. 3d 6, 8 [App Term, 1st Dept 2013] [CPLR 4519 "finds no application...where [the] challenged testimony was offered not 'against the executor, administrator or survivor of a deceased person' (CPLR 4519), but against the petitioner building owner, clearly a stranger to the deceased tenant's estate"]; cf Herrmann v.  Sklover Grp., Inc., 2 AD3d 307 [2003] [confirming the invocation of CPLR 4519 by corporate defendant to preclude testimony about conversations with a decedent when the decedent owned shares of the subject corporation and those corporate shares were then held by the decedent's estate]).

Plaintiff neither establishes that plaintiff derives its interest in the present matter "from, through or under" Hill (CPLR 4519; see Matter of Lefft, 44 NY2d 915, 917 [1978] [declining to bar testimony under CPLR 4519 where the testimony would not lead to a change "from, through or under" the estate]) nor cites any authority to apply CPLR 4519 to a successor-in-interest via a contract of sale (and not a successor via the decedent's estate). Plaintiff offers no response to Booston's analysis of 1504 Assocs., L.P. or Matter of Lefft, cited above, both of which analyzed CPLR 4519, except claiming that none of the cases upon which Booston relies considered the statute (NYSCEF # 331 at 11).

This case demonstrates that the Dead Man’s Statute’s reach is narrower than the name by which most people know it would imply.  The attorneys at Schlam Stone & Dolan frequently litigate disputes concerning the authenticity of documents or the Dead Man’s Statute.  Contact the Commercial Division Blog Committee at if you or a client have questions concerning such issues.