Be careful before you start answering this question.  When it comes to applying CPLR §4519, commonly referred to as the Dead Man’s Statute, easy answers are sometimes hard to find.

CPLR §4519 precludes testimony upon an objection at “the trial of an action or the hearing upon the merits of a special proceeding,” where 1) the witness has a financial  interest in the outcome of the litigation; 2) she is to be examined about a personal transaction or communication of the decedent; 3) she is to be examined as a witness on her own behalf; and, 4) the testimony sought to be elicited is against the fiduciary or survivor of the decedent or a person deriving his title from the decedent. The principle purpose of the statute is to prevent fraudulent claims which could easily be asserted against a decedent’s estate – since the decedent cannot give his version of the transaction or conversation, the financially interested witness is not permitted to give her version. There is no shortage of commentary concerning the Dead Man’s Statute and a great number of cases examine its application (see Matter of Wood 52 NY2d 139 [1981]; Sepulveda v Aviles, 308 AD2d 1 [1st Dept 2003];Matter of Radus, 140 AD2d 348 [2d Dept 1988]; Matter of Miller 97 AD2d 581 [3d Dept 1983]; Estate of Breitman, 4/7/99 NYLJ 35, [col. 5] [Sur Ct, Nassau County 1999]; Matter of Dunbar, 139 Misc 2d 955 [Sur Ct, Bronx County 1988]; See also Radigan, The Dead Man’s Statute – Alive and Well in the Surrogate’s Court, 50 NY St BJ 470 [1980];  Brooks, It’s Time to Kill the Dead Man’s Statute, NYLJ, July 18, 1988, at 1, col 1).   

By its plain language, CPLR §4519 has no application at any stage of a proceeding or action other than at “a trial or a hearing on the merits.” It is clear that the statute has no application during pre-trial discovery at a deposition pursuant to Article 31 of the CPLR. Similarly, it has no application in examinations held pursuant to SCPA §§1404, 2211, or at an examination during the inquisitorial stage of a discovery proceeding (see Philips v Kantor & Co., 31 NY2d 307 [1972]; Lemlich v Lemlich, 266 AD 748 [2d Dept 1943]; Wall Street Assoc. v Brodsky, 295 AD2d 262 [1st Dept 2002]). 


What about a hearing on a preliminary injunction? Is that considered a “trial or hearing on the merits” within the meaning of CPLR §4519.

Recently, in Matter of Tschernia (18 Misc 3d 1114[A] [Sur Ct, Nassau County 2007]),  Surrogate Riordan addressed whether the statute should apply to bar testimony at a hearing on a preliminary injunction. There, the petitioner sought a preliminary injunction restraining the preliminary executrix from selling a substantial parcel of real property. His petition sought a declaration that he was the owner of the subject real property, or in the alternative, to impose a constructive trust on the real property. In an effort to meet his burden on the preliminary injunction, the petitioner sought to testify as to his transactions with the Decedent.  Surrogate Riordan held that the Dead Man’s Statute applied to bar the petitioner’s testimony, focusing on the fact that a hearing on a preliminary injunction is not merely a discovery, disclosure, or fact gathering proceeding, but is aimed at determining whether a provisional remedy will be afforded based, in part, on weighing the likelihood of success on the merits. He observed as follows:

Unlike in the inquisitorial stage of a proceeding, the protection of the Dead Man’s Statute may be raised when the testimony is offered in evidence at the trial on the merits as to the issue of title, or is used as a basis for the determination of title. Unlike a pretrial deposition or the inquisitorial stage of an SCPA 2103 proceeding, the preliminary injunction hearing is not inquisitorial in nature. Presumably, the testimony [the petitioner’s] attorney attempted to elicit from [the petitioner] was to help demonstrate that he is likely to succeed at trial. It would be incongruous for the court to allow [the petitioner] to testify at the preliminary injunction hearing on matters about which he would be disqualified, upon a proper objection, from testifying at trial.

Surprisingly, it appears as though Tschernia may be the only reported case that squarely addresses the application of the Dead Man’s Statute at a hearing on a preliminary injunction. While the plain language of the statute can potentially be construed to preclude its application at a hearing on a preliminary injunction, the result in Tschernia follows the logic of relevant case-law and the policy underlying the Dead Man’s Statute.