The court was presented with an evidentiary issue during trial of a contested Mental Hygiene Law Art. 81 proceeding for appointment of a guardian for the personal and property management needs of Steven S., an allegedly incapacitated person, due to the purported financial improprieties, exploitation, and undue influence perpetrated by cross-petitioner.
The court held that CPLR §4519—New York’s so-called “Dead Man’s Statute”—does not apply to possible testimony by cross-petitioner and his witnesses, as Steven S. is not suffering from a “mental illness” under §4519 and, even if Steven S. did suffer from a mental illness, the protections afforded by §4519 were waived by his counsel, who questioned a nonparty in detail about the business transactions between the cross-petitioner and the witness.
