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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 25, 2020

Plaintiff Not Entitled to Summary Judgment on Guaranty When it Could Not Be Authenticated by a Disinterested Witness

On February 13, 2020, the First Department issued a decision in Galpern v. Air Chefs, L.L.C., 2020 NY Slip Op. 01021, holding that a plaintiff was not entitled to summary judgment on a guaranty because it could not be authenticated by a disinterested witness, explaining:

As for defendants’ arguments under the dead man’s statute, plaintiff does not deny that he is a person interested in the event, and that the communications described in his affidavit were with the decedent. Because the lease was entered into by defendant Air Chef, Inc., and defendants failed to present any evidence that the corporate defendant was entitled to raise the dead man’s statute as a defense to the action, the motion court properly awarded summary judgment on the first cause of action under the lease against defendant Air Chef, Inc.

We modify, however, with respect to the cause of action under the personal guaranty purportedly signed by the decedent, because although documentary evidence is admissible notwithstanding the dead man’s statute, it must be authenticated by a source other than an interested witness’s testimony. Having failed to authenticate the guaranty through a source other than an interested witness’s testimony, plaintiff was not entitled to summary judgment on the guaranty.

(Internal quotations and citations omitted) (emphasis added).

The dead man’s statute is one of New York’s more arcane rules of evidence. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about New York’s rules of evidence.

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