A lender had commenced a foreclosure action. Some defendants had served an answer and a temporary receiver had been appointed. Thereafter, a holdover summary proceeding had been commenced by the temporary receiver, alleging that the respondents are oral month-to-month tenants and that their lease had expired based upon a notice of termination. The respondents asserted that the notice of termination was insufficient, they have a written lease and pursuant to the written lease, their tenancy did not expire until September, 2016. The subject issue involved a motion in limine. The respondents argued that the temporary receiver lacked standing “to invoke the Dead Man’s Statute, codified in Civil Practice Law and Rules (CPLR) §4519, thus preventing the decedent’s daughter…from testifying in regard to the lease at issue.”
In essence, CPLR §4519 “bars testimony from a person interested in the event or a person from, through or under whom such person derives his or her interest or title with regard to any personal transaction or communication with the decedent.” The rule, inter alia, protects “the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court…. An exception to the statute exists where the executor is examined in his own behalf….”
