New York Law Review

Tag: dead man’s statute

  • Matter of Zalk, 10 N.Y.3d 669 (2008): Applicability of Dead Man’s Statute in Attorney Disciplinary Proceedings

    10 N.Y.3d 669 (2008)

    The Dead Man’s Statute (CPLR 4519) does not apply in attorney disciplinary proceedings where the attorney is testifying in their own defense against disciplinary charges brought by a disciplinary committee, even if the outcome of the proceeding could potentially affect the interests of the deceased client’s estate or beneficiaries in a future proceeding.

    Summary

    This case concerns whether an attorney, Richard Zalk, could testify about conversations with his deceased client, Ruth Gellman, regarding a disputed fee arrangement. The Departmental Disciplinary Committee sought to prevent Zalk from testifying under the Dead Man’s Statute. The Court of Appeals held that the Dead Man’s Statute did not apply because Zalk was testifying against the Disciplinary Committee, not against the executor, administrator, or survivor of the deceased. The court reasoned that the statute’s protection extends only to direct actions against the estate, not to contingent future proceedings.

    Facts

    Richard Zalk, an attorney, represented Ruth Gellman for many years. After her husband’s death, he continued to provide legal services, allegedly agreeing to be paid upon the sale of her property, Hamilton Gardens. After the sale, Zalk claimed Ruth Gellman orally agreed he could keep the balance of the down payment as payment for past legal services. After Gellman’s death, her daughters (co-administrators of her estate) disputed Zalk’s claim. Zalk withdrew funds from the escrow account. The daughters filed a disciplinary complaint.

    Procedural History

    The Departmental Disciplinary Committee brought charges against Zalk. A referee initially found the Dead Man’s Statute inapplicable. The hearing panel reversed, remanding for further proceedings. The Appellate Division reversed the referee, finding Zalk had engaged in misconduct and suspended him for two years. The Court of Appeals granted leave to appeal and stayed the suspension, ultimately reversing the Appellate Division’s order and remanding the matter.

    Issue(s)

    Whether the Dead Man’s Statute (CPLR 4519) applies in an attorney disciplinary proceeding where the attorney’s testimony concerns personal transactions or communications with a deceased client and is offered in defense against charges brought by the Departmental Disciplinary Committee?

    Holding

    No, because the attorney is testifying against the Disciplinary Committee, not against the executor, administrator, or survivor of the deceased client.

    Court’s Reasoning

    The Court of Appeals focused on the plain language of CPLR 4519, the Dead Man’s Statute, which prohibits a party or interested person from testifying in their own behalf against the executor, administrator, or survivor of a deceased person concerning a personal transaction or communication with the deceased. The Court reasoned that the disciplinary proceeding was brought by the Departmental Disciplinary Committee, not by the deceased client’s estate or beneficiaries. The court acknowledged the Committee’s argument that a finding in Zalk’s favor could compromise the daughters’ chances of reimbursement from the Lawyers’ Fund for Client Protection or prevent them from invoking collateral estoppel in a future civil suit. However, it stated that the statute only applies to testimony directly “against the executor, administrator or survivor” and does not extend to testimony that may indirectly affect their interests in a contingent future proceeding. The Court emphasized that while the Dead Man’s Statute has been frequently questioned, it has been consistently reenacted by the Legislature and remains the law of New York.

  • Medwin v. Purzycki, 449 N.E.2d 141 (N.Y. 1983): Scope of Waiver Under the Dead Man’s Statute

    Medwin v. Purzycki, 449 N.E.2d 141 (N.Y. 1983)

    Under New York’s Dead Man’s Statute (CPLR 4519), an executor’s introduction of evidence regarding banking transactions does not automatically waive the statute’s protection to allow testimony about separate personal transactions with the deceased unless the executor directly testifies about that specific personal transaction.

    Summary

    This case addresses the scope of waiver under New York’s Dead Man’s Statute (CPLR 4519). The executor of an estate sought to recover funds withdrawn from joint bank accounts held by the deceased and the respondents. The executor presented evidence of the withdrawals, but the respondents claimed they returned the funds to the deceased. The court held that the executor’s evidence of the withdrawals did not “open the door” to the respondents’ testimony about personally returning the funds to the deceased, as that was a separate personal transaction. The waiver is limited to the specific personal transaction the executor introduces.

    Facts

    Robert S. Wood (the deceased) held joint bank accounts with Therese and Frank Purzycki (the respondents). Shortly before his death, the respondents withdrew approximately $15,000 from these accounts. The executor of Wood’s estate, Nathan M. Medwin, brought a proceeding to recover these funds, alleging they were improperly withheld from the estate. The respondents admitted to withdrawing the funds, admitting the funds were the property of the deceased, but claimed they returned the money to Wood while he was ill, only retaining $402. At trial, the executor presented documentary evidence of the withdrawals and the conversion of funds to cash, but offered limited testimony about the actual transactions or interactions between the Purzyckis and the deceased.

    Procedural History

    The Surrogate’s Court overruled the executor’s objection and allowed the respondents to testify about returning the funds to the deceased, finding that the executor had waived the protection of the Dead Man’s Statute by introducing evidence of the bank accounts and withdrawals. The Appellate Division affirmed the Surrogate Court’s decree. The New York Court of Appeals reversed, holding that the executor had not waived the statute’s protection.

    Issue(s)

    Whether an executor, by introducing evidence of bank account openings and withdrawals, “opens the door” and waives the protection of CPLR 4519, allowing the other party to introduce evidence of a personal transaction with the decedent to demonstrate proper disposition of the funds.

    Holding

    No, because the executor did not testify or elicit testimony regarding the specific personal transaction (the alleged return of funds). The waiver is limited to the specific “personal transaction” the executor introduces evidence about.

    Court’s Reasoning

    The Court of Appeals emphasized that CPLR 4519, the Dead Man’s Statute, prevents interested parties from testifying about personal transactions with a deceased person unless the estate representative waives the protection. A waiver occurs when the representative testifies about the same transaction or introduces the deceased’s testimony. The court stated that the statute aims to protect the estate from perjury by living claimants who assert facts the deceased cannot refute. The Court rejected the argument that introducing evidence of the withdrawals “opened the door” to testimony about the funds’ return, explaining that the executor only presented evidence of banking transactions, not the alleged personal interaction where the funds were supposedly returned. The Court clarified that the waiver only applies to the specific “personal transaction” at issue, emphasizing, “Where no such testimony regarding a personal transaction is offered or elicited, the protection of CPLR 4519 is not waived and the ‘door’ is not ‘opened’.” Allowing the respondents’ testimony simply because the executor showed they possessed estate property would undermine the statute’s purpose. The court stated, “the executor can only ‘open the door’ by testifying or forcing another to testify to a personal transaction with the decedent.” The court reversed the Appellate Division’s order and remitted the case for a new trial where the respondents’ testimony regarding the delivery of funds should be excluded.

  • In re Estate of Lefft, 44 N.Y.2d 915 (1978): Requirements for Establishing a Valid Gift

    In re Estate of Lefft, 44 N.Y.2d 915 (1978)

    To establish a valid gift, there must be clear and convincing evidence of donative intent, delivery of the gift, and acceptance by the donee.

    Summary

    This case addresses the requirements for a valid gift, particularly the element of delivery, when a decedent’s children claimed ownership of artwork based on an alleged gift from their father. The court found that while a trust created by the decedent was valid, it did not benefit his children. Furthermore, even if the testimony of a witness (the decedent’s former spouse) were admitted, the children failed to prove a valid gift due to lack of evidence of delivery of the artwork. The court emphasized that a gift must be established by clear and convincing proof, including delivery of the property.

    Facts

    Harold Lefft created a trust with himself, his wife Geraldine, and a third trustee. The trust agreement stated Harold’s intention to retain certain artwork for his children, but it didn’t provide for any disposition of the artwork (corpus) or proceeds from its sale to the children. Harold later executed a separation agreement with Geraldine, terminating the trust. After Harold’s death, his children claimed he had gifted them the artwork prior to his death. The Surrogate Court deemed Geraldine incompetent to testify about the alleged gift due to the dead man’s statute. The children appealed, arguing that Harold had made a gift of the paintings to them.

    Procedural History

    The Surrogate’s Court ruled against the children, finding that Harold Lefft did not create a valid trust for their benefit and that Geraldine Lefft was incompetent to testify about the alleged gift. The Appellate Division affirmed the Surrogate’s Court decision. The children then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Harold Lefft created a valid trust for the benefit of his children.

    2. Whether Geraldine Lefft was competent to testify regarding the alleged gift of paintings from Harold Lefft to his children under the dead man’s statute.

    3. Whether the children presented sufficient evidence to establish a valid gift of the paintings from Harold Lefft.

    Holding

    1. Yes, because the decedent, Harold Lefft, did create a valid trust.

    2. Yes, because Geraldine Lefft was not a person “from, through or under” whom the appellant would take the contested paintings if her testimony were credited.

    3. No, because even if Geraldine Lefft’s testimony were accepted, the children failed to establish a gift because of the absence of proof of delivery.

    Court’s Reasoning

    The Court of Appeals agreed with the lower court’s result but clarified its reasoning. It found that Harold Lefft did create a valid trust, but the beneficiaries were limited to Harold and Geraldine, not the children. The court noted that the trust agreement only expressed Harold’s intention to keep the artwork for his children but didn’t provide for any disposition to them.

    Regarding Geraldine’s competency to testify, the court held that the Surrogate erred in applying the dead man’s statute (CPLR 4519). The court reasoned that Geraldine’s waiver of her rights increased the children’s share of the estate, but they would take the paintings by gift from the decedent, not through the estate.

    However, the court ultimately affirmed the lower court’s decision because the children failed to prove a valid gift. The court emphasized that a gift must be established by clear and convincing proof, citing Hemmerich v Union Dime Sav. Inst., 205 NY 366, 369. Even if Geraldine’s testimony were accepted, the children failed to demonstrate delivery of the artwork, a necessary element for a valid gift, citing Matter of Szabo, 10 NY2d 94, 98. Without proof of delivery, the gift claim failed, regardless of intent.

  • Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972): Impact of the Dead Man’s Statute on Summary Judgment

    Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972)

    Evidence that would be excluded at trial under the Dead Man’s Statute (CPLR 4519) should be considered when determining whether a triable issue of fact exists to defeat a motion for summary judgment.

    Summary

    This case addresses whether evidence, otherwise relevant but excludable under New York’s Dead Man’s Statute, can be considered to defeat a summary judgment motion. Phillips, a lender, sued Kantor & Co., accountants, alleging reliance on false financial statements provided by the deceased senior partner, Kantor, regarding two companies. The Court of Appeals held that such evidence should be considered to determine if a triable issue of fact exists. The court reasoned that asserting rights under the Dead Man’s Statute prior to trial is premature and prevents aggrieved parties from assembling evidence. The existence of some admissible evidence also factored into the decision.

    Facts

    Phillips loaned money to Russell Springs Manufacturing Corporation and Townley Shirts, Inc., based on financial information provided by Joseph Kantor, the senior partner of Kantor & Co. Phillips claimed Kantor misrepresented the financial health of these companies. Kantor died before his deposition could be completed. Phillips relied on private conversations with the deceased Kantor to establish the malpractice claim. A letter from Kantor to Phillips stated Russell Springs had a positive net worth. Kantor’s testimony in a bankruptcy proceeding indicated a later deficiency in Russell Springs’ capital.

    Procedural History

    Phillips sued Kantor & Co. for malpractice after the companies defaulted on the loans and filed for bankruptcy. The defendants moved for summary judgment, arguing that Phillips’ testimony regarding conversations with the deceased Kantor was inadmissible under the Dead Man’s Statute. Special Term initially granted Phillips a continuance to obtain affidavits. Subsequently, Special Term granted summary judgment for the defendants, and the Appellate Division affirmed. Phillips appealed to the New York Court of Appeals.

    Issue(s)

    Whether evidence, otherwise relevant and competent, but subject to exclusion under the Dead Man’s Statute (CPLR 4519), can be considered to defeat a motion for summary judgment.

    Holding

    Yes, because evidence excludable under the Dead Man’s Statute should not predetermine the result on summary judgment in anticipation of the objection, especially when there is some other admissible evidence suggesting a likelihood of establishing the plaintiff’s prima facie case.

    Court’s Reasoning

    The Court of Appeals emphasized that summary judgment should be denied if there is any significant doubt about the existence of a material, triable issue of fact. The court noted a split among the Appellate Divisions regarding the admissibility of evidence under the Dead Man’s Statute in summary judgment proceedings. The court aligned itself with the First Department’s view, stating that evidence excludable under the Dead Man’s Statute can be considered to determine whether a triable issue exists. The court reasoned that the Dead Man’s Statute, by its terms, applies “upon the trial of an action or the hearing upon the merits of a special proceeding” (CPLR 4519). Therefore, asserting rights under the statute prior to trial is premature. The court also pointed to the possibility of waiver of the statute at trial. Additionally, the court emphasized that other admissible evidence, such as the letter from Kantor and his bankruptcy testimony, might contribute to establishing a prima facie case. The court stated, “Before that time, under the letter of the statute evidence not otherwise infirm suffices to determine whether an issue of fact exists, without being overly concerned with how the parties will or may prevail on that issue.”

  • Matter of Pernisi, 296 N.Y. 336 (1947): Admissibility of Evidence Under the Dead Man’s Statute

    Matter of Pernisi’s Estate, 296 N.Y. 336 (1947)

    The Dead Man’s Statute (CPLR 4519) prohibits a person interested in the event from testifying about personal transactions or communications with a deceased person if the testimony is offered against the deceased person’s estate.

    Summary

    This case addresses the application of the Dead Man’s Statute in a dispute over a promissory note. The claimant, Pernisi, sought to recover on a note allegedly executed by the deceased. The estate argued the note was paid, offering evidence of checks from the deceased to Pernisi. Pernisi attempted to testify the checks were for a different purpose. The court considered whether Pernisi’s testimony was barred by the Dead Man’s Statute and whether sufficient evidence existed to support the Surrogate’s finding of payment. The Court of Appeals held Pernisi’s testimony was properly excluded but divided on whether the circumstantial evidence supported the finding of payment.

    Facts

    The claimant, Pernisi, presented a $7,500 promissory note purportedly made by the deceased. The executors of the estate contended the note had been paid. They introduced six checks totaling $7,500 from the decedent to Pernisi. Pernisi conceded she received the proceeds of these checks. She further conceded the checks were not payments under a separation agreement but were payments in addition to those due under the agreement. Pernisi sought to testify that the checks were for a purpose other than payment of the note.

    Procedural History

    The Surrogate’s Court rejected Pernisi’s offer of oral testimony under the prohibition of section 347 of the Civil Practice Act (the Dead Man’s Statute), finding that the note had been paid. The Appellate Division affirmed the Surrogate’s Court decision. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether the claimant’s testimony regarding the purpose of the checks was properly excluded under the Dead Man’s Statute.
    2. Whether there was sufficient evidence to support the Surrogate’s finding that the promissory note had been paid.

    Holding

    1. Yes, because the Dead Man’s Statute prohibits a person interested in the event from testifying about personal transactions or communications with a deceased person if the testimony is offered against the deceased person’s estate.
    2. Yes, because the evidence of the checks, along with the claimant’s concessions, provided a sufficient basis for the Surrogate’s finding of payment. (This holding was the subject of a dissent.)

    Court’s Reasoning

    The court upheld the exclusion of Pernisi’s testimony under the Dead Man’s Statute, emphasizing the statute’s purpose to protect the deceased’s estate from fraudulent claims. As for the sufficiency of the evidence, the majority found that the six checks totaling the exact amount of the note, coupled with Pernisi’s admission that these checks were in addition to payments under their separation agreement, constituted sufficient evidence for the Surrogate to infer payment. The court acknowledged the inference of payment was not uncontrovertible but emphasized it was the Surrogate’s role to draw inferences from the evidence presented. The dissent argued that while the inference of payment wasn’t a certainty, the Surrogate, as the trier of fact, was entitled to draw that inference from the conceded facts. The dissent quoted Tortora v. State of New York, 269 N.Y. 167, 170, stating, “Inference is never certainty, but it may be plain enough to justify a finding of fact.”

  • Bacon v. Gilmore, 74 N.Y. 36 (1878): Admissibility of Testimony Regarding Intent in Transactions with Deceased Persons

    Bacon v. Gilmore, 74 N.Y. 36 (1878)

    Under New York’s Dead Man’s Statute, a party is generally prohibited from testifying about personal transactions or communications with a deceased person if the testimony is offered against the deceased person’s estate.

    Summary

    This case concerns the admissibility of testimony regarding the plaintiff’s intent when transferring property to a deceased individual. The court held that the plaintiff could not testify about his intent in placing property with the deceased, Bacon, because that intent was part of a personal transaction, and Bacon could no longer refute it. The ruling reinforces the principle that when one party to a transaction is deceased, the other party’s testimony about that transaction is restricted to ensure fairness and prevent potential fraud against the deceased’s estate. The court affirmed the judgment, finding no errors in the exclusion of the plaintiff’s testimony.

    Facts

    The plaintiff allegedly placed funds and property with Bacon (now deceased) to delay or defraud his creditors. The defendant (presumably representing Bacon’s estate) presented evidence to support this defense. The plaintiff was then asked if he had placed property in Bacon’s hands with the intent to defraud creditors. The referee sustained an objection to this question.

    Procedural History

    The case proceeded to trial where the referee excluded certain testimony from the plaintiff. The court reviewed the referee’s decision to exclude evidence regarding the plaintiff’s intent and other related matters. The New York Court of Appeals reviewed the judgment, focusing on the evidentiary rulings made during the trial.

    Issue(s)

    Whether the plaintiff’s testimony regarding his intent when placing property in the hands of the deceased, Bacon, is admissible under the restrictions of the Dead Man’s Statute regarding personal transactions with deceased individuals.

    Holding

    No, because the plaintiff’s intent was an integral part of the personal transaction with Bacon, and therefore, testimony about it is inadmissible under the rule preventing parties from testifying about personal transactions with deceased individuals when the testimony is offered against the deceased’s estate.

    Court’s Reasoning

    The court reasoned that the plaintiff’s intent was intrinsically linked to the act of placing property with Bacon, making it a part of the personal transaction. Allowing the plaintiff to testify about his intent would be akin to allowing him to testify about the transaction itself, which is prohibited by the Dead Man’s Statute. The court emphasized the need for fairness, stating, “There is the same reason for excluding the living party from testifying as to the intent with which a personal transaction with a deceased party was performed, as for excluding him as a witness to any other part of the transaction. Such evidence can generally be disproved only by what was said and done at the time of the transaction, and hence, when death has sealed the lips of one party the law should seal the lips of the other.” The court further noted that when evidence is excluded upon a general objection, the ruling will be upheld if any ground existed for the exclusion. The questions regarding ownership of the mortgage and real estate were also deemed inadmissible as they related to property placed in Bacon’s hands, thus involving personal transactions. Church, Ch. J., and Andrews, J., dissented, arguing that evidence of the plaintiff’s intent should have been admitted.