SALEMO v. GELLER (2000)

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

Katherine Franzino SALEMO, etc., Plaintiff-Respondent, v. Leonard GELLER, et al., Defendants-Appellants.

Decided: December 14, 2000

ROSENBERGER, J.P., WILLIAMS, TOM, ELLERIN and WALLACH, JJ.

J. Brian Hansbury, for Plaintiff-Respondent. Andrew T. Miltenberg, for Defendants-Appellants.

Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about March 31, 2000, which denied defendants' motion for summary judgment, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about April 20, 2000, which denied defendants' motion to reargue, unanimously dismissed, as taken from a nonappealable order, without costs.

We affirm the denial of the motion on the ground that there are issues of fact, including the credibility of defendants' witnesses who submitted affidavits in support of the motion, as to whether defendants defrauded plaintiff's decedent into giving them money and signing legal documents the nature and import of which he did not understand. Without ruling on its applicability or effect at trial, defendants-movants will not be heard to assert CPLR 4519, the Dead Man's Statute, on their motion for summary judgment dismissal (see, Phillips v. Kantor & Co., 31 N.Y.2d 307, 313, 338 N.Y.S.2d 882, 291 N.E.2d 129).

MEMORANDUM DECISION.

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