Stewart v Maitland (2009 NY Slip Op 00050)

Stewart v Maitland

2009 NY Slip Op 00050 [58 AD3d 443]

January 8, 2009

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 11, 2009

Barbara Stewart, as Executor of Archibald Stewart, Deceased, Respondent,
v
Guy E.C. Maitland et al., Appellants, et al., Defendants.

—[*1] Duane Morris LLP, New York (Hyman L. Schaffer of counsel), for appellants.

Satterlee, Stephens, Burke & Burke, LLP, New York (Mario Aieta of counsel), for respondent.

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered November 7, 2007, awarding plaintiff $2,866,402.75 against defendants Maitland, Guida, International Registries and Oban, unanimously affirmed, with costs.

Since plaintiff's counsel's opening statement at trial was not part of the evidence, it did not "open the door" to conversations between the decedent and the judgment debtors herein, or otherwise constitute a waiver of the provisions of CPLR 4519, concerning the subject memorandum of agreement (see Matter of Wood, 52 NY2d 139 [1981]; cf. Matter of Berardini, 238 App Div 433, 435 [1933], affd 263 NY 627 [1934]). Concur—Mazzarelli, J.P., Saxe, Friedman, Acosta and DeGrasse, JJ.