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Carlson v. Lamberti

Appellate Division of the Supreme Court of New York, Second Department
Feb 25, 1980
74 A.D.2d 630 (N.Y. App. Div. 1980)

Opinion

February 25, 1980


In an action to impress constructive trust on the proceeds of certain Totten trusts, plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered May 25, 1977, which is in favor of defendants upon the trial court's dismissal of the complaint at the close of the plaintiffs' case for failure to make out a prima facie case. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The trial court erroneously excluded the testimony of plaintiff Angelina Sachowski in which the witness recalled admissions which defendant Sofia Lamberti had made concerning conversations which she had had with the decedent. It was also error to sustain defendants' objection to questions which had been put to Sofia during her examination before trial and which related to Sofia's conversations with the decedent. Since Sofia's statements were clearly not made in her own behalf or interest, they were not incompetent under the Dead Man's Statute (see CPLR 4519). Finally, we believe that the court erred in dismissing the complaint at the close of the plaintiffs' case. Drawing every favorable intendment from the evidence adduced by the plaintiffs, a prima facie case for the imposition of constructive trusts was made out (see Tebin v. Moldock, 19 A.D.2d 275, mod 14 N.Y.2d 807). Lazer, J.P., Gibbons, Gulotta and Margett, JJ., concur.


Summaries of

Carlson v. Lamberti

Appellate Division of the Supreme Court of New York, Second Department
Feb 25, 1980
74 A.D.2d 630 (N.Y. App. Div. 1980)
Case details for

Carlson v. Lamberti

Case Details

Full title:ROSE CARLSON et al., Appellants, v. SOFIA LAMBERTI et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 25, 1980

Citations

74 A.D.2d 630 (N.Y. App. Div. 1980)

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