Brezinski v. Brezinski

Dillon, P. J. (dissenting in part).

For the reasons stated by the majority, I agree that the trial court erred in excluding, on authority of CPLR 4519, the testimony of Stella, Ronald and Donald Brezinski. Since it cannot be determined on this record whether their testimony would have been relevant to the issue before the trial court, I agree that the case should be remitted.

I dissent from the majority rationale, however, concerning the competency of the testimony proffered by plaintiff. I would adopt in full the analysis of that issue as set forth in the well-reasoned decision of the trial court (Balio, J.). He concluded, as do I, that ’“to permit this plaintiff to testify as to her intent would allow her to do indirectly what she cannot do directly” (cf. Matter of Kleinberg v Heller, 38 NY2d 836, 843 [Fuchsberg, J., concurring]; see, also, Matter of O’Neil, 20 AD2d 741; Matter of Marri, 57 Misc 2d 793, 795-796).

Simons, Moule and Schnepp, JJ., concur with Hancock, Jr., J.; Dillon, P. J., dissents in part, in a memorandum.

Judgment unanimously reversed, without costs, and a new trial granted.