On April 8, 2022, Justice Gomez of the Bronx County Commercial Division issued a decision in Worbes Corp. v. Sebrow, 2022 NY Slip Op. 50252(U), holding that the Dead Man’s Statute did not bar testimony about an alleged contract, explaining:
Defendants remaining contention, that the Dead Man’s statute precludes the introduction of the agreement at trial, such that it is unlikely that plaintiffs are likely to ultimately prevail on their action for declaratory judgment, is also unavailing.
CPLR § 4519, states, in relevant part, that
upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, 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 or the committee of a person with a mental illness, or a person deriving his title or interest from, through or under a deceased person or person with a mental illness, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, 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 person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication.
Thus, CPLR § 4519 precludes an interested party from testifying about transactions with . . . a decedent or one deemed incompetent to testify. As noted by the court in Matter of Wood’s Estate, (52 NY2d 139 [1981]),
the statue prevents any person “interested in the event” from testifying to a “personal transaction” with the deceased unless the representative of the deceased has waived the protection of the statute by testifying himself or introducing the testimony of the decedent into evidence at trial
The rationale for the statute is that it
prevents a party or one interested in the event giving testimony as to personal transactions or communications with a deceased person, is that the deceased cannot confront the survivor, or give his version of the affair, or expose the omissions, mistakes, or falsehoods of the survivor
Notably, the protection accorded by the statute can be waived when the decedent’s estate, representative, or the person seeking to avail itself of the protection of the statute testifies concerning the transaction, which would otherwise be precluded or when the party who would otherwise benefit from the statute elicits testimony regarding the otherwise precluded transaction.
Here, defendants contend that the only evidence precluding BS’ ownership interest in shares in Worbes is the agreement. As to the agreement, defendants contend that the only person who can authenticate the same is ZS. Since ZS is an interested party and the agreement evinces a personal transaction with DS, who is dead and whose estate would otherwise be entitled to DS’ shares in Worbes, defendants contend that ZS’ testimony about the agreement and therefore, the agreement itself are not admissible.
On this record, the foregoing assertion is flawed at best and at worst, shortsighted. First, with regard to the flaw in the assertion, as evinced by Judge Rosado’s decision in BS’ action, it is clear that by alleging that the agreement was forged, she has, as the executor of DS’ estate, put the authenticity of the agreement at issue, and has thus waived the right to preclude ZS from testifying about the same. Second, and perhaps most puzzling, is that defendants’ position, seeking to exclude the agreement and indeed ZS’ testimony regarding the same from the Court’s consideration fails to recognize that absent the agreement, there is nothing else establishing that DS ever owned shares in Worbes. Thus, but for the agreement, defendants cannot as urged – establish that DS owned shares in Worbes and that, therefore, the same were bequeathed to BS upon his death. This the legal and tactical equivalent of cutting off one’s nose to spite one’s face. Accordingly, whether in the now disposed action where BS waived the protections of CPLR § 4519, or in this action, where defendants will likely, in order to prevail, have to protections of CPLR § 4519, the Dead Man’s Statute did not and will not preclude the admission of the agreement or ZS’ testimony regarding the same.
(Internal quotations and citations omitted).