Pursuant to CPLR 4519, "[u]pon the trial of an action . . . , a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a person with a mental illness . . . concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication." Generally, evidence that would be inadmissible at trial under the Dead Man's Statute may not be relied upon to establish a prima facie entitlement to judgment as a matter of law.
As parties to this medical malpractice action, the two individual defendants are thereby interested in the outcome of this action. Consequently, their deposition testimony and affidavits that were largely based on their communications with the decedent could not be considered as evidence in support of the defendants' motion for summary judgment. However, the deposition testimony of the registered nurse, who rendered certain care and spoke to the decedent, was admissible, as the nurse is not an interested party within the meaning of the Dead Man's Statute.
Weber v. Sharma, NY Slip Op 06001 (2d Dep't November 27, 2024)
