Courts greatly appreciate when parties settle their disputes by agreement. Settlements alleviate the courts of the burden of overwhelming caseloads, and further the public policy of encouraging parties to order their affairs by contract rather than relying on statute and common law. As the Surrogate’s Court recently reiterated in Matter of Eckert, “stipulations of
When clients ask whether they can “sue for legal fees,” the courts continue to reiterate that the answer is almost always no; that the American Rule still controls. In our latest post, Frank Santoro discusses recent decisions in the contexts of trusts and estates litigation and guardianship litigation that speak to fee shifting and exceptions to the American Rule. …
Continue Reading The Answer is Almost Always No
New York CPLR 3122(d) provides that the “reasonable production expenses” incurred by a non-party’s compliance with a subpoena shall be defrayed by the party issuing the subpoena. May a non-party’s counsel fees related to responding to a subpoena involving the production of electronically stored information be included as “reasonable production expenses”? The Queens County Surrogate’s Court recently answered this question in Matter of Khagan. Brian Corrigan discusses the decision in our latest post.
Continue Reading Nothing in Life (and Litigation) is Free: Surrogate’s Court Awards a Non-Party $40,000 in Counsel Fees for Complying with a Subpoena Requiring Production of ESI
In our latest entry, Hillary Frommer discusses the probative value of testimony from psychiatric experts on testamentary capacity in probate proceedings.
Continue Reading The Psychiatric Expert in Probate Proceedings
The question of whether a joint account was truly intended as such, or was instead intended to be a convenience account, is a frequently litigated topic. Jaclene D’Agostino discusses this issue in our latest entry.
Continue Reading Was it a Convenience Account?
The Nassau County Surrogate’s Court recently addressed an application to vacate a deed that purported to convey real property from the decedent to his wife. At issue was the element of delivery. Eric Penzer discusses the decision in this week’s entry.
Continue Reading Decedent’s Purported Transfer of Residence To Wife Fails For Non-Delivery of Deed
This week’s entry discusses a recent case in which a decedent’s estate planning documents were relevant in determining the outcome of a corporate dispute.
Continue Reading Court Considers Estate Planning Documents In Deciding Corporate Dispute
It might well be an understatement to characterize New York’s Dead Man’s Statute (CPLR 4519) as somewhat “enigmatic,” at least to those practitioners who do not often encounter it. Indeed, the leading treatise on the statute is over three-quarters of a century old (see Greenfield on Testimony under Sec. 347 (CPA) § 61 ).
This article contains a brief overview of the statute and more thorough discussion of its application to motions for summary judgment.
Generally — and perhaps overly simplistically — the Dead Man’s Statute renders an interested person incompetent to testify concerning a personal transaction (including a communication) with a deceased or mentally ill person. Such evidence is freely discoverable, however, and may be the subject of testimony at a deposition. Indeed, the rule applies only “upon the trial of an action or the hearing upon the merits of a special proceeding” (CPLR 4519).
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 ; 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 ; 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 ; Lemlich v Lemlich, 266 AD 748 [2d Dept 1943]; Wall Street Assoc. v Brodsky, 295 AD2d 262 [1st Dept 2002]).