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THE BEST EVIDENCE RULE AND THE DEAD MAN’S STATUTE PRECLUDED PLAINTIFF FROM PROVING HIS CASE, WHICH WAS BASED UPON A CONTRACT AND DECEDENT’S STATEMENTS ABOUT THE CONTRACT; ALTHOUGH THE DEAD MAN’S STATUTE USUALLY WILL NOT PRECLUDE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, HERE IT IS CLEAR PLAINTIFF WILL NOT BE ABLE TO PROVE HIS CASE AT TRIAL (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment in this action based upon a contract between plaintiff and decedent was properly granted. The alleged copy of the contract was inadmissible pursuant to the best evidence rule, and any testimony about what the decedent said about the contract was prohibited by the Dead Man’s statute:

… [T]he plaintiff failed to adequately explain the unavailability of the original executed joint development agreement … . Moreover, even if the plaintiff met his threshold burden of explaining the unavailability of the original joint development agreement, he failed to establish that the copy was a reliable and accurate portrayal of the original … . The plaintiff’s proffered testimony that the copy was an exact copy of the original joint development agreement could not be offered at trial, as it was precluded by the application of the Dead Man’s Statute (see CPLR 4519 …). …

“New York’s Dead Man’s Statute by its terms makes testimony by an interested witness ‘concerning a personal transaction or communication between the witness and the deceased’ excludable only ‘[u]pon the trial of an action or the hearing upon the merits of a special proceeding'” … .Generally, “[e]vidence, otherwise relevant and competent upon a trial or hearing, but subject to exclusion on objection under the Dead Man’s Statute, should not predetermine the result on summary judgment in anticipation of the objection”… . Thus, evidence excludable at trial under CPLR 4519 may be considered in opposition to a motion for summary judgment … . However, a trial is unnecessary if it is certain that there would be no waiver of the statute and that all of the proof would be excludable … . Where, as here, the sole evidence proffered by the opposing party is barred by the Dead Man’s Statute, an award of summary judgment is appropriate … . Stathis v Estate of Donald Karas, 2021 NY Slip Op 02330, Second Dept 4-14-21

 

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