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Hearsay in Summary Judgment Motions Dindiyal v. Dindiyal 2017 NY Slip Op 03152 Second Department, April 2017

May 11, 2017 • Posted By Joseph A. French • Trusts and Estates

            The issue of hearsay in summary judgment motions is an issue that the practitioner should be ever vigilant about when drafting and opposing summary judgment motions.

            Plaintiff’s motion for summary judgment was granted, and she was declared the sole beneficiary of the life insurance policy at issue.  Plaintiff was the sister of a man who had entered into a Stipulation of Settlement regarding the marital estate he had with the defendant.  The policy was not mentioned in the Stipulation of Settlement, and plaintiff’s brother died before the judgment of divorce was entered.

            The Court upheld the Lower Court’s decision, and found that defendant had not raised a triable issue of fact.  “The defendant’s allegation that the deceased husband did not cause the change in beneficiary, but that the change was done without his knowledge, is based on pure speculation.  To the extent that the affidavit of Sohan Lal, who was related by marriage to the defendant, recounted an alleged statement that the deceased husband made to him regarding whether Dasrat distrusted the plaintiff, constituted hearsay. …hearsay statements may be used for the purpose of opposing a motion for summary judgment, so long as they are not the only evidence submitted to raise a triable issue of fact (see Pontes v. F&S Contr., LLC, 146 AD3d 829, 830)”.

            Thus, hearsay may be permitted – but we suggest it should always be opposed – because it cannot serve as the sole basis for determining that a triable issue of fact exists.