Opinion
February 10, 1999
Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Summary Judgment.
Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ.
Order insofar as appealed from unanimously reversed on the law with costs and motion denied in part in accordance with the following Memorandum: Supreme Court erred in granting plaintiffs' motion insofar, as it sought dismissal of the third affirmative defense in action No. 2 and the first affirmative defense in action No. 3 and partial summary judgment on liability against defendant Heriberto Rivera. Evidence submitted by Rivera, which may be excludable at trial under the Dead Man's Statute (CPLR 4519), is nevertheless sufficient to support the affirmative defenses and defeat the motion for summary judgment ( see, Phillips v. Kantor Co., 31 N.Y.2d 307, 313-315; Lancaster v. 46 NYL Partners, 228 A.D.2d 133, 140; Matter of Alden, 52 A.D.2d 1051).