On January 24, 2023, Justice Chan of the New York County Commercial Division issued a decision in 35 W. Realty Co., LLC v. Booston LLC, 2023 NY Slip Op. 30255(U), holding that the deadman’s statute did not bar testimony that was not offered against a decedent’s estate, explaining:
As an initial matter, plaintiff requests under CPLR 4519 for an order in limine precluding Booston from offering any testimony by interested witnesses as to the Disputed Amendment and the Commission Agreement or the circumstances surrounding the supposed execution of said documents at trial. Plaintiff acknowledges that CPLR 4519 applies to trial but posits that it is likewise applicable to a motion for summary judgment since a summary judgment motion is the procedural equivalent of a trial. Absent the precluded testimony under CPLR 4519, and because Fred Hill is now deceased, plaintiff argues that Booston would be unable to authenticate the Disputed Amendment and Commission Agreement. Hence, plaintiff posits that its motion for a partial summary judgment for a declaration that the Lease expired in 2020 should be granted.
Booston responds that CPLR 4519 can never, under any circumstance, bar evidence or testimony in opposition to a summary judgment motion. Booston further argues that plaintiff has no standing to raise CPLR 4519 as it is not a successor to Fred Hill and the statute only bars testimony about a transaction or communication with a deceased person when it is offered against the executor, administrator or survivor of a deceased person or a person deriving his title or interest from, through or under a deceased person or person.
Booston adds that even if, for argument’s sake, CPLR 4519 were somehow applicable, nonetheless plaintiff has waived any objection to the Booston testimony at issue (id. at 18). Booston explains that in support of the 2017 summary judgment
motions in this action, Kohan’s affidavits detailed the 2005 interactions he and his partner, Fariborz Roshanfekr, had with Fred Hill, including the execution of the Disputed Amendment in Hill’s office. Plaintiff did not object to Booston raising this testimony at that time and so waived the objection and notes that plaintiff itself elicited testimony at Roshanfekr’s deposition about the 2005 transactions and/or communications with Mr. Hill, thus opening the door to any additional testimony that may be offered on the same subject to complete the story.Plaintiff disputes Booston’s description of the limited reach of CPLR 4519, arguing that the statute applies to the present situation to bar the biased and self-serving serving testimony of Booston’s principals, which result plaintiff maintains is also
required under general principles of common law. Plaintiff argues that Booston inaptly relies on cases from early in the last century, none of which considered the application of CPLR 4519 and which are distinguishable. Plaintiff rejects that it waived the right to invoke the protections of CPLR 4519.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.
The underlying purpose of CPLR 4519 is to protect decedents’ estates from perjurious claims. 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 applying CPLR 4519 and examining the underlying purpose of the statute, plaintiffs 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.Plaintiff neither establishes that plaintiff derives its interest in the present matter from, through or under 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.
Plaintiffs argument that the in limine preclusion of the testimony of Booston’s principals is also required under common law is unavailing. Plaintiff cites Glatter v Borten, but in that case, the First Department made clear that the principle of precluding interested witnesses has been incorporated into CPLR 4519.
(Internal quotations and citations omitted).