Coury v. Arcuri

—In an action, inter alia, to recover the plaintiffs alleged one-half interest in certain bank accounts, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), entered March 27, 1998, which denied his motion for partial summary judgment. Ordered that the order is affirmed, with costs. We agree with the Supreme Court that triable issues of fact exist precluding summary judgment in this case. While the affidavits submitted by the defendants in opposition to the plaintiffs prima facie case for summary judgment are based on their alleged conversations with the decedent Mabel Coury, evidence excludable by CPLR 4519 may be considered to defeat a motion for summary judgment (see, Phillips v Kantor & Co., 31 NY2d 307; McEvoy v Garcia, 114 AD2d 401; Tancredi v Mannino, 75 AD2d 579). The plaintiffs remaining contentions are without merit. Friedmann, J. P., Krausman, McGinity and Feuerstein, JJ., concur.