CASTELLOTTI v. John R. Blasi, et al., Defendants. (2024)

Order, Supreme Court, New York County (James d'Auguste, J.), entered May 19, 2023, which, to the extent appealed from as limited by the briefs, denied defendant's motion in limine to exclude evidence regarding communications with decedent Madeline Castellotti or her intentions with respect to her estate plan and any arrangements that varied or contradicted her will, unanimously modified, on the law, to grant defendant's motion to bar testimony by plaintiff concerning conversations with decedent regarding her will and estate plan, and otherwise affirmed, without costs.

Plaintiff's testimony concerning conversations with decedent regarding her intention that he receive half of her estate after his divorce was final is barred by CPLR 4519, since such testimony would be offered against defendant, decedent's survivor, who derived her interest in decedent's assets from decedent (see Grechko v. Maimonides Med. Ctr., 188 A.D.3d 832, 835, 134 N.Y.S.3d 435 [2d Dept. 2020];  Nunez v. LMJ Vision, Inc., 148 A.D.3d 496, 497, 49 N.Y.S.3d 129 [1st Dept. 2017]).

However, CPLR 4519 does not bar the testimony of third-party witnesses concerning conversations with decedent about her will, estate plan, or the alleged oral agreement between plaintiff and defendant to transfer to plaintiff half of decedent's assets after his divorce, since the third parties do not have an interest in decedent's estate.  Moreover, the court properly concluded that testimony by plaintiff concerning the alleged oral agreement was proper since those conversations do not constitute extrinsic evidence in derogation of the will and do not call into question whether or not the will reflected decedent's intentions.  Although extrinsic evidence may not be used to challenge a clear and unambiguous will (see Matter of Cord, 58 N.Y.2d 539, 544, 462 N.Y.S.2d 622, 449 N.E.2d 402 [1983]), here, the issue is whether or not the parties had an oral agreement that required defendant to transfer certain property or assets to plaintiff after distribution of the estate.