Opinion
April 20, 1995
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
It was not error for the trial court to consider the exclusionary effect of CPLR 4519 for the first time on an in limine application, as the issue was not subject to consideration on the previous motion for summary judgment (Phillips v Kantor Co., 31 N.Y.2d 307; Tancredi v Mannino, 75 A.D.2d 579). Plaintiffs were properly barred from testifying about any personal communications or transactions with their deceased brother, including negative testimony or documents regarding such communications or transactions (see, Boyd v Boyd, 164 N.Y. 234; Matter of Hamburg, 151 Misc.2d 1034), and to the extent that plaintiffs are seeking to recover from the decedent's estate, his heirs and assigns, such defendants are proper parties to invoke the protection afforded by the statute (see, Kwoh v Delum Bldrs. Suppliers, 173 A.D.2d 326). In addition, while an attorney seeking to avail himself or herself of a contract with a client has an affirmative duty to demonstrate that his or her dealings with the client are free from fraud (see, Greene v Greene, 56 N.Y.2d 86, 92), this does not alter plaintiff's burden of proof on the Statute of Limitations issue as to when the purported fraud was discovered.
We have considered plaintiffs' remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Wallach, Asch and Williams, JJ.