Submitted November 8, 2001.
December 3, 2001.
In a contested probate proceeding, the objectant, Christopher Pennino, appeals from a decree of the Surrogate's Court, Nassau County (Radigan, S.), dated May 30, 2000, which, upon a jury verdict finding that the decedent was not unduly influenced in executing his will, admitted to probate the last will and testament of the decedent, Gabriel Pennino.
Cahalan Cahalan, P.C., Northport, N.Y. (Eric Cahalan of counsel), for appellant.
Cinque Cinque, P.C., New York, N.Y. (Robert W. Cinque of counsel), for respondent.
Before: WILLIAM D. FRIEDMANN, J.P., NANCY E. SMITH, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
ORDERED that the decree is affirmed, with costs.
Contrary to the objectant's contentions, he waived the protection of CPLR 4519 (the "Dead Man's Statute"), by eliciting testimony from the proponent of the will regarding otherwise-protected transactions involving the decedent (see, Matter of Wood, 52 N.Y.2d 139; Nay v. Curley, 113 N.Y. 575).
The issue of whether the Surrogate erred in admitting into evidence a letter written by the decedent's daughter regarding their estranged relationship is unpreserved for appellate review (see, Crapazano v. County of Nassau, 272 A.D.2d 363; Calabrese v. Chan, 244 A.D.2d 376). In any event, although the letter constituted hearsay, it was immaterial to the issue of whether the decedent was subject to undue influence, particularly since the letter was written eight days after the will was executed. Accordingly, its admission into evidence was harmless (see, Barracato v. Camp Bauman Buses, 217 A.D.2d 677; Willinger v. City of New Rochelle, 212 A.D.2d 526).
FRIEDMANN, J.P., SMITH, ADAMS and COZIER, JJ., concur.