Court Holds Testimony Barred By Dead Man’s Statute Cannot Defeat Summary Judgment When The Only Other Evidence Is Hearsay

Posted: November 11, 2026 / Written by: Ian Weiss / Categories Summary Judgment, Evidence

Court Holds Testimony Barred By Dead Man’s Statute Cannot Defeat Summary Judgment When The Only Other Evidence Is Hearsay

On October 28, 2026, in Slabakis v. Olympos Trading Corp., Index No. 653632/2021, Justice Robert R. Reed of the New York County Commercial Division granted defendants’ motion for summary judgment dismissing the complaint. Plaintiff alleged that, in 1984, his now-deceased business partner agreed to buy plaintiff’s 20% interest in corporations that owned real estate in the New York City area, and sought to enforce that alleged agreement against the partner’s estate and successors. No copy of the alleged agreement, and no document showing plaintiff’s ownership interest, was produced, and plaintiff was the only living witness with purported firsthand knowledge of the agreement. New York’s Dead Man’s Statute, CPLR 4519, bars a person with an interest in the outcome of a case from testifying about a personal transaction with a deceased person against the decedent’s executor, administrator, or survivor. Plaintiff therefore could not testify at trial about his dealings with his late partner. The question was whether that testimony, together with evidence from several third-party witnesses, including a former bank loan officer and plaintiff’s accountant, could defeat summary judgment. The Court held it could not, explaining:

As plaintiff is an interested witness, because he stands to benefit if his testimony is accepted as true, the Dead Man’s Statute bars his testimony at trial.

Testimony barred by the Dead Man’s Statute can be used to oppose a motion for summary judgment, where such testimony is not the only evidence presented to defeat the motion (see Phillips v Kantor & Co., 31 NY2d 307, 314 [1972]; Matter of Ingberman [Colon], 194 AD3d 410, 411 [1st Dept 2021]), and where the court is certain that the statute would not be waived at trial (Stathis v Estate of Karas, 193 AD3d 897, 900-901 [2d Dept 2021]). Similarly, the court may consider incompetent evidence, such as hearsay, in opposition to a motion for summary judgment, provided that it is not the only evidence (City of New York v Catlin Specialty Ins. Co., 158 AD3d 586, 587 [1st Dept 2018]; Uncyk v Cedarhurst Prop. Mgt., LLC, 137 AD3d 610, 611 [1st Dept 2016]). . . .

The evidence proffered by [the third-party] witnesses is inadmissible as hearsay and, additionally, is the only evidence apart from plaintiff’s evidence, which is barred by the Dead Man’s Statute.

The court also held that the statute of frauds barred enforcement of the alleged agreement.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning the Dead Man’s Statute and summary judgment practice.

To read more about the use of evidence barred by the Dead Man’s Statute in opposition to summary judgment, see Schlam Stone & Dolan’s related Commercial Division Blog post on a decision holding that such evidence may be considered in opposition to summary judgment but may not form the sole basis for denying the motion.