Debra Laughlin, Respondent-Appellant. v. <<

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

Matter of the ESTATE OF Rose LAMPARELLI, Deceased. Rocco Lamparelli, Executor of the Estate of Rose Lamparelli, Deceased, Petitioner-Respondent; Debra Laughlin, Respondent-Appellant.

Decided: April 30, 2004

PRESENT:  GREEN, J.P., PINE, KEHOE, GORSKI, AND HAYES, JJ. Dennis C. Gaughan, Hamburg (Kevin J. Bauer of Counsel), for Respondent-Appellant. Lavin & Kleiman, P.C., Buffalo (John J. Lavin of Counsel), for Petitioner-Respondent.

 Petitioner commenced this proceeding pursuant to SCPA 2103 seeking discovery and delivery of the proceeds of a bank account and other property allegedly belonging to Rose Lamparelli (decedent) at the time of her death.   Respondent submitted an answer denying possession of the property, and a hearing was held before a referee.   At that hearing, petitioner established that respondent came into possession of the life savings of decedent approximately five years before her death.   Petitioner further established that respondent cashed a check made payable to decedent.   We therefore conclude that petitioner met his burden of establishing that respondent was in possession of property belonging to the estate of decedent (see Matter of Rabinowitz, 5 Misc.2d 803, 804, 159 N.Y.S.2d 492;  see also Matter of Buckler, 227 App.Div. 146, 147, 237 N.Y.S. 242;  Matter of Kuster, 12 Misc.2d 239, 244, 152 N.Y.S.2d 742).

 We agree with respondent, however, that a new hearing is warranted because Surrogate's Court erroneously precluded the testimony of respondent.   By introducing the deposition testimony of respondent in which she testified that she received money from decedent following a withdrawal from decedent's savings account, petitioner waived the protection of the Dead Man's Statute (see CPLR 4519) and opened the door to the otherwise incompetent testimony of respondent at the hearing (see Matter of Radus, 140 A.D.2d 348, 349, 527 N.Y.S.2d 840;  see also Nay v. Curley, 113 N.Y. 575, 579, 21 N.E. 698;  Alexander, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C4519:6 [c];  compare Matter of Wood, 52 N.Y.2d 139, 436 N.Y.S.2d 850, 418 N.E.2d 365).

It is hereby ORDERED that the amended judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and a new hearing is granted.

MEMORANDUM: