LOPEZ v. TOWN OF GATES (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Beduina LOPEZ, as Administratrix of the Estate of Carlos Manuel Rivera Cruz, a/k/a Carlos Manuel Cruz Rivera, Deceased, Plaintiff, v. TOWN OF GATES, et al., Defendants. (Action No. 1.)
Beduina Lopez, as Administratrix of the Estate of Carlos Manuel Rivera Cruz, a/k/a Carlos Manuel Cruz Rivera, Deceased, Respondent, v. John Doe, as Executor of the Estate of Johnny L. Sanchez, Deceased, Defendant,
Heriberto Rivera, Appellant. (Action No. 2.) William E. Pugh and Dolores M. Pugh, Respondents, v. Town of Gates, et al., Defendants, Heriberto Rivera, Appellant. (Action No. 3.)

Decided: February 10, 1999

PRESENT: DENMAN, P.J., GREEN, HAYES, PIGOTT, Jr., and BALIO, JJ.

Trevett, Lenweaver by Thomas Lenweaver, Rochester, for Defendant-Appellant. Palmiere Law Firm, P.C. (Norman Palmiere, of counsel), Rochester, for Plaintiffs-Respondents.

Supreme Court erred in granting plaintiffs' motion insofar as it sought dismissal of the third affirmative defense in action No. 2 and the first affirmative defense in action No. 3 and partial summary judgment on liability against defendant Heriberto Rivera. Evidence submitted by Rivera, which may be excludable at trial under the Dead Man's Statute (CPLR 4519), is nevertheless sufficient to support the affirmative defenses and defeat the motion for summary judgment (see, Phillips v. Kantor & Co., 31 N.Y.2d 307, 313-315, 338 N.Y.S.2d 882, 291 N.E.2d 129; Lancaster v. 46 NYL Partners, 228 A.D.2d 133, 140, 651 N.Y.S.2d 440; Matter of Alden, 52 A.D.2d 1051, 384 N.Y.S.2d 287).

Order insofar as appealed from unanimously reversed on the law with costs and motion denied in part.

MEMORANDUM:

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