New York Court of Appeals
Nathan Phillips v. Joseph Kantor & Company, and Herbert Kantor
November 3, 197231 N.Y.2d 307
Summary
The New York Court of Appeals reversed the Appellate Division and denied the defendants' motion for summary judgment, holding that evidence excluded by the Dead Man's Statute may be considered to determine whether a triable issue exists and that plaintiff possessed non‑excludable evidence sufficient to raise a prima facie case. The court emphasized that the statute does not bar consideration of such evidence at the summary‑judgment stage. Chief Judge Fuld dissented, arguing that the only evidence was inadmissible and that summary judgment should be affirmed.