35 WEST REALTY CO LLC v. Friedphil Realty Corp., Defendant. (2023)

Order, Supreme Court, New York County (Margaret A. Chan, J.) entered January 26, 2023, which, insofar as appealed from, denied plaintiff's motion for partial summary judgment on its first claim against defendant Booston, LLC, for a declaratory judgment declaring that the parties’ lease expired on October 31, 2020 and directing defendant to vacate, and to exclude certain testimony at trial under CPLR 4519, unanimously affirmed, without costs.

The motion court properly denied plaintiff's motion in limine to exclude testimony relating to the making and execution of a disputed lease amendment under CPLR 4519.  As the court correctly determined, the dead man's statute applies only to testimony by an interested witness “against the executor, administrator or survivor of [the deceased person]” rather than to a dispute involving corporate interests (see e.g. Matter of Zalk, 10 N.Y.3d 669, 679, 862 N.Y.S.2d 305, 892 N.E.2d 369 [2008]).  Contrary to plaintiff's contention, this Court's decision in Galpern v. Air Chefs, L.L.C., 180 A.D.3d 501, 118 N.Y.S.3d 603 (1st Dept. 2020) expressly made this distinction by application of the dead man's statute to testimony relating to the corporate defendant's lease, while noting that it applied to testimony relating to the personal guaranty “purportedly signed by the decedent,” since the latter needed to be “authenticated by a source other than an interested witness's testimony” (id. at 502, 118 N.Y.S.3d 603).  The reasoning of the Appellate Term in 1504 Assoc., L.P. v. Wescott, 41 Misc.3d 6, 972 N.Y.S.2d 809 (App. Term, 1st Dept. 2013) in declining to apply the dead man's statute to preclude testimony against the corporate building owner is persuasive and applies here (id. at 8, 972 N.Y.S.2d 809 [“the Dead Man's Statute finds no application in this holdover eviction proceeding, where appellant's challenged testimony was offered not ‘against the executor, administrator or survivor of a deceased person’ (CPLR 4519), but against the petitioner building owner, clearly a stranger to the deceased tenant's estate”]).

We also affirm the motion court's denial of plaintiff's motion for summary judgment on its claim for declaratory relief.  Although certain contentions raised in this motion were not raised in an earlier motion, the court properly concluded that the parties’ competing factual contentions remained unresolved as a matter of law for the reasons we identified in our earlier decision in this matter (35 W. Realty Co., LLC v. Booston LLC, 171 A.D.3d 545, 545, 98 N.Y.S.3d 169 [1st Dept. 2019]).

We have considered plaintiff's remaining contentions and find them unavailing.