On December 28, 2023, the First Department issued a decision in 35 W. Realty Co., LLC v. Booston, LLC, 2023 NY Slip Op. 06794, holding that the Dead Man’s Statute did not bar testimony regarding the existence of a business’ lease, explaining:
The motion court properly denied plaintiff’s motion in limine to exclude testimony relating to the making and execution of a disputed lease amendment under CPLR 4519. As the court correctly determined, the dead man’s statute applies only to testimony by an interested witness against the executor, administrator or survivor of the deceased person rather than to a dispute involving corporate interests. Contrary to plaintiff’s contention, this Court’s decision in Galpern v Air Chefs, L.L.C., (180 AD3d 501 [1st Dept 2020]) expressly made this distinction by application of the dead man’s statute to testimony relating to the corporate defendant’s lease, while noting that it applied to testimony relating to the personal guaranty purportedly signed by the decedent, since the latter needed to be authenticated by a source other than an interested witness’s testimony. The reasoning of the Appellate Term in 1504 Assoc., L.P. v Wescott (41 Misc 3d 6 [App Term, 1st Dept 2013]) in declining to apply the dead man’s statute to preclude testimony against the corporate building owner is persuasive and applies here.
(Internal quotations and citations omitted).