Category: CPLR R. 4405

Initially, we note that contrary to defendant's contention,
plaintiff's posttrial motion to set aside the verdict was not untimely.
Although CPLR 4405 requires such motions to be made within 15 days
"after decision, verdict or discharge of the jury," the time limit is
not absolute, and a posttrial motion is not untimely if it is made
within an extended time period set by the trial court without objection
(see Manning v BrookhavenMem. Hosp. Med. Ctr., 11 AD3d 518
[2004]). The City Court set forth a motion schedule, and there is
nothing in the record to indicate that any objection was made to such
schedule. In any event, it does not appear that there was any prejudice
suffered as a result of the delay in presenting written arguments to
the court (see e.g. Brown v Two Exch. Plaza Partners, 146 AD2d 129 [1989]).

In support of the posttrial motion, plaintiff pointed to
numerous instances where defendant's testimony was in violation of the
Dead Man's Statute (CPLR 4519), which prohibits a party who has an
interest in the outcome of the proceeding from testifying about
communications or transactions with a decedent. CPLR 4519 (a) provides,
in pertinent part, as follows: 

"Upon the trial of an action . . . a party or a person interested
in the event . . . shall not be examined as a witness in his own behalf
or interest . . . concerning a personal transaction or communication
between the witness and the deceased person . . . except where the
executor . . . is examined in his own behalf . . . concerning the same
transaction or communication." 

In the instant case, the burden of establishing the defense of payment was upon defendant (see Lynch v Lyons,
131 App Div 120 [1909]). The sole evidence offered in support of his
defense was his own testimony regarding his payments to the decedent,
unsupported by any documentation. This testimony clearly violated CPLR
4519. In an action brought by the representative of a decedent's estate
on a promissory note, the maker is not permitted to testify regarding
his or her personal transactions with the deceased payee (Matter of Callister, 153 NY 294 [1897]; Alexander v Dutcher, 70 NY 385 [1877]; Cody v Hadcox,
98 App Div 467 [1904]) unless the representative "is examined in his
own behalf . . . concerning the same transaction" (CPLR 4519).
Plaintiff herein did not waive the protection of the statute nor, as
defendant suggests, was plaintiff using the statute "as a sword rather
than a shield" (Matter of Wood, 52 NY2d 139, 145 [1981]).
Plaintiff's prima facie case was established via the documentary
evidence submitted on plaintiff's direct case, which evidence did not
"open the door" to defendant's testimony regarding his transactions
with the decedent (id.).

In the instant case, the admission of defendant's testimony was
improper as it concerned "a personal transaction or communication
between the witness and the deceased person" (CPLR 4519) and was highly
prejudicial to plaintiff. Accordingly, the trial court did not err in
granting plaintiff's motion to the extent of setting aside the verdict
and ordering a new trial.