Evidence Inadmissible Under Dead Man's Statute Admissible In Opposition to Summary Judgment

On March 31, 2014, Justice Schmidt of the Kings County Commercial Division issued a decision in Peck v. Mitchell, 2014 NY Slip Op. 50715(U), applying the Dead Man's Statute on a motion for summary judgment.

In Peck, the plaintiff asserted claims relating to ownership of her home. The defendant moved for summary judgment on the plaintiff's claims. One argument raised by the defendant related to the admissibility of the plaintiff's affidavit, which described an oral agreement between the plaintiff and her now-deceased son regarding ownership of her home. The court explained:

[T]he court rejects defendant's assertion that the Dead Man's Statute bars the plaintiff's evidence regarding the alleged oral agreement. CPLR 4519 (the Dead Man's Statute) bars testimony from a person interested in the event or a person from, through or under whom such person derives his or her interest or title with regard to any personal transaction or communication with the decedent. Generally, evidence that is inadmissible at trial under CPLR 4519 cannot be used to support a motion for summary judgment. However, statements of a decedent are not rendered inadmissible under the Deadman's Statute' (see CPLR 4519), when offered in opposition to a motion for summary judgment. Indeed, hearsay testimony which violates the Dead Man's Statute (CPLR 4519) may be admitted for the purpose of opposing a motion for summary judgement. Nonetheless, evidence otherwise excludable at trial may not form the sole basis for a court's determination, and standing alone, may be insufficient to defeat a motion for summary judgment.

Thus, the primary evidence presented in opposition to defendant's motion (i.e., statements in the plaintiff's affidavit referencing the alleged oral agreement) will be deemed admissible for purposes of defeating the summary judgment motion as long as there is some supportive admissible evidence.

(Internal quotations and citations omitted) emphasis added). The court went on to hold that other admissible was present and denied the plaintiff's motion for summary judgment.

The Dead Man's Statute does not frequently play a role in commercial litigation, but as this decision illustrates, it can have a significant impact and the rules for its application are not straightforward.