This action arises from a disputed option to purchase (“option”) contained in a commercial lease (“lease”) which defendant Excel Automotive (“Excel” or “defendant”) admittedly failed to exercise in a timely manner. The preliminary issue introduced at trial was whether the Dead Man’s Statute, as contained in CPLR §4519 ( “Statute”), precluded the introduction into evidence of the lease and or testimony about the lease, because it related to personal transactions and conversations with Bridge Street’s deceased predecessor in interest, Joseph Vitarelli (“Vitarelli”). The ultimate issue tried before this court was whether equity should allow defendant to exercise the expired option to purchase the property under the seminal case of J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc., 42 N.Y.2d 392 (1977) (“J.N.A.”), which held that “equity will intervene to relieve a tenant or mortgagor who, due to inadvertence or neglect, fails to timely exercise an option if the default will cause it to suffer a substantial forfeiture and there is no prejudice to the landlord or seller.” Fordham Paradise, LLC v. ABI Prop. Partners, LP XXVI, 306 A.D.2d 178,178-179 (1st Dept. 2003) citing to J.N.A., supra. 42 N.Y. 2d at 397-98. As will be set forth below, this Court reaffirms its rulings that the Statute does not bar documentary evidence or sworn testimony or affidavits by the deceased from coming into evidence, and its admission into evidence of the lease between Vitarelli and Excel and various affidavits of Vitarelli. It also reaffirms its decision permitting Han and Richard Mauro to testify about the signing of the lease and how defendant attempted to exercise the option. However, this Court finds that defendant has failed to meet its burden of proving that it is entitled to the equitable relief of avoiding the consequences of its untimely attempt to exercise the option and the forfeiture of its investments.PROCEDURAL HISTORYIt is undisputed that Excel and Vitarelli initially entered into a written commercial lease, dated March 1, 1999, whereby Excel rented the subject property located at 23-35 Bridge Street in Brooklyn (‘property”) for use as an auto garage and repair shop for a term of six years, expiring on April 29, 2005. Defendant claims that paragraph 61 of the lease1 included an option granting Excel the right to purchase the property from plaintiff for $950,000 at the end of the fourth year of the lease, provided that Excel give written notice to Vitarelli of its intent to exercise the option by certified mail within 90 days prior to the end of the fourth year; i.e. November 30, 2002. The lease provision further required that Excel be “ready, willing, and able” to close before the end of February 2003, and that the written notice exercising the option set a time and location for closing.It is also undisputed that Excel did not timely tender written notice of its intent to exercise the option in writing by the required date. On March 19, 2003, Joseph Vitarelli commenced this action seeking a judgment “declaring the option to be unenforceable and of no further force or effect” ( Complaint13) since paragraph 61 of the lease was removed when executed by the plaintiff (Id. at8-9)2 or alternatively, that Excel failed to properly provide notice of exercise of the option in the time period and manner required in the Lease; i.e. 90 days prior to the expiration of the fourth year of the lease which was February 23, 2003. (Id. at10-11). Thus, Vitarelli sought to preempt any attempt by Excel to affirmatively obtain equitable relief in court by seeking a declaration, while the lease was still in effect, that when the tenant did seek to exercise the option, that it was precluded from doing so.By answer dated October 20, 2003, Excel submitted its answer and counterclaimed seeking an order granting equitable relief and directing that the property to be conveyed to it for the price of $950,000. Excel averred that it orally informed Vitarelli of its intent to exercise its rights under the option in February 2002 and at other times in Fall 2002 and that Vitarelli’s response was to file the lawsuit in March 2003 “within days after the date” that Bridge Street alleges the sale to Excel should have closed. Excel also averred that plaintiff “disaffirmed” the existence of any purchase option, making it clear to the tenant that any written exercise would be futile (31). Excel asserted that it entered into the lease because of the option to purchase, that it undertook extensive improvements in the amount of approximately $150,000 in anticipation of becoming the purchaser, and that it was still in the process of expending money.For some inexplicable reason, Excel did not inform Vitarelli in writing of its election to exercise its option to purchase the property until October 17, 2003, three days before it filed its counterclaims, and eleven months after it should have tendered its written notice. The letter states that the tenant was “ready, willing and able” to purchase the premises for $950,000 on or three months after the date of the notice, and that this written notice “reiterates and confirms” the tenant’s prior oral exercise of the option which Han had “personally conveyed to” Vitarelli prior to December 31, 2002, at which time Vitarelli rejected the oral exercise and stated that there was no option provision in the lease (Pl. Exh “W”).For reasons still unknown to this Court, it took almost eleven years for this case to come to trial. The eleven years were consumed with numerous motions and a change in plaintiff’s attorneys. Germane to this case are two decision of Justice Michael J. Garson, dated April 21, 2004 and April 14, 2005, which respectively addressed whether Excel’s prior attorney had the authority to enter into a stipulation of settlement, and which denied both parties’ motions for summary judgment in their entirety. In both decisions, Justice Garson noted that the action arose from “a disputed provision in a lease by which Excel rented property from plaintiff and that the provision at issue, paragraph 61, provided that Excel would have the right to purchase the property after the completion of the fourth year provided that it gave timely written notice of its intent to exercise said option.”In his April 14th decision, Justice Garson, upon reviewing Excel’s arguments that it was entitled to equitable relief based upon J.N.A. and its progeny, found that in order to validly exercise an option to purchase real property “one must strictly adhere to the terms and conditions of the option agreement” (P.5) citing to Weiss v. Adler, 187 A.D. 2d 647, 648 (1992). Based upon Han’s affirmation that he had orally advised plaintiff on several occasions that Excel intended to exercise the purchase option, Justice Garson found that it was clear that Han was aware of the existence of the purchase option and should have known that he was required to give written notice in a timely fashion. Moving on to the other prongs of J.N.A., Justice Garson found that he was unable to ascertain from the numerous receipts that Han submitted “what the money was expended on and who made the purchases.” Id at 5. As such, ” a question of fact exists regarding whether Excel would suffer a forfeiture were it not allowed to exercise the option and whether Excel had “ recouped and/or depreciated…[the value of its expenditures] during the term of the lease.” Id. at 5. Therefore, the court denied that portion of plaintiff’s summary judgment motion seeking a declaration that Excel had failed to exercise its option to purchase the premises and that branch of Excel’s cross motion seeking a declaration that it validly exercised said option.3 See, Vitarelli v. Excel Automotive Tech, Ctr., 25 A.D. 3d 691 (2d Dept. 2006) (aff’g J. Garson’s decision denying motion for summary judgment).By Order dated September 11, 2011, the Hon. David I Schmidt substituted 23-35 Bridge Street LLC (“Bridge Street” or “plaintiff”)4 as the plaintiff following Vitarelli’s death in October 2010. Justice Schmidt also removed the non-payment proceeding from Civil Court and consolidated it with the DJ action and directed Excel to make certain payments. Finally, the court ruled that Excel will remain in possession of the property as a month to month tenant of the LLC, subject to the provisions of the expired lease including the purported option to purchase, until the final determination of this action.THE TRIAL — DEAD MAN’S STATUTEMore than half of the trial was consumed with various motions in limine brought by plaintiff and arguments over the authenticity of numerous documents.5 The predominant motion in limine, which plaintiff raised ad nauseam throughout the trial, concerned whether CPLR §4519 — the ” Dead Man’s Statute” — precluded certain evidence from coming into evidence. Since plaintiff preserved its right to challenge the court’s interim rulings on the Statute until the end of the trial, the Statute will be discussed herein.Plaintiff first put into evidence the death certificate of Joseph Vitarelli, dated October 15, 2010, through Vitarelli’s grandson, Mr. Robertelli, who also is the property manager of Bridge Street LLC. Plaintiff also submitted a series of three deeds certified by the County Clerk conveying the three lots from Joseph Vitarelli to plaintiff Bridge Street LLC (“LLC”) (Pl. Exh. “3″) prepared on August 20, 2010, and recorded on September 3, 2010. Each of the conveyances contained a page commencing with the term “This Indenture” and included Joseph Vitarelli’s signature written by two different attorneys. Plaintiff then rested and argued that it had proven through admissions that the lease term had expired, the lease was not renewed, and that it was the property owner.Defendant requested that the case be dismissed or that the Court declare that plaintiff had failed to make a prima facie case that either the option did not exist or was unenforceable. The Court denied this request because plaintiff had not even raised the specter of the option, but permitted defendant to proceed on its claim that the option existed and was enforceable and that it was entitled to equitable relief under J.N.A. Plaintiff retorted that defendant could not prove its case because any lease that it might attempt to put into evidence with paragraph 61 intact would be inadmissible under the Dead Man’ Statute, and that in any event, as averred in para. 9 of its complaint, the terms of the option had been removed from the lease.The Court then permitted Excel to proceed on its counterclaim and defendant put its principal, Joke Han on the stand. Han testified that he first became aware of the Bridge Street property in the early part of 1999, while looking for property so he could expand his existing auto repair business that was located on Fulton Street. Richard Mauro, a real estate agent, showed him the Bridge Street property and he immediately commenced negotiations with Mauro to obtain a lease, which ultimately led to the signing of the lease with Mr. Vitarelli. Han testified that when he first saw the building it was “empty…no lights, minimum lights, no heating.” (Tr. 6/03 at 38) . Han testified that the lease was signed at a pizzeria on Front Street in DUMBO, Mauro and Vitarelli were already there when he arrived for the signing, and that Vitarelli handed him a copy of the lease and rider. Han identified his own signature, as well as Vitarelli’s and Mauro’s signatures, since they each signed the document in front of him. Mauro notarized their signatures. His sister Hwee Lan Han was only present to sign as the guarantor but was not a witness to the signing of the lease by Han and Vitarelli; Mauro notarized her signature as well. Han identified the lease that contained the option in paragraph 61 as the complete copy of the lease and rider that he and Vitarelli signed at the pizzeria.Han testified that after the lease was signed, three original copies where distributed to him, Vitarelli, and Mauro. Han made a copy of the original but gave the actual original to his attorney Mr. William King. Han contacted King before coming to testify at trial but King could not find the original lease. Han kept a copy of the of the lease in his filing cabinet at Excel. Defendant then attempted to admit the lease that Han had signed into evidence (Def. Exh. A)6. Plaintiff contended that this lease was barred under the Dead Man’s Statute because it related to personal transactions and conversations with Bridge Street’s deceased predecessor in interest, Vitarelli. Plaintiff further argued that Han and Mauro, as interested witnesses, could not proffer or authenticate either version of the Lease.CPLR §4519 provides in pertinent part that “Upon the trial of an action…, a party or a person interested in the event…shall not be examined as a witness in his own behalf or interest…concerning a personal transaction or communication between the witness and the deceased person…except where the executor, administrator…or person so deriving title or interest is examined in his own behalf, or the testimony of the…deceased is given in evidence, concerning the same transaction.”The Dead Man’s Statute ” prevent[s] the living from testifying to certain personal transactions with the dead.” In re Estate of Wood, 52 N.Y.2d 139, 144 (1981).”One of the main purposes of the rule was to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court.” Mtr of Zalk, 10 N.Y.3d 669, 678 (2008). See also Sepulveda v. Aviles, 308 A.D.2d 1, 10 (1st Dept. 2003). The Statute thus prevents anyone “interested in the underlying event” from testifying about a personal transaction or communication with the deceased unless the representative of the deceased waives the protection of the statute by either testifying himself or introducing the testimony of the decedent into evidence at trial. Mtr. Of Wood, supra 52 N.Y. 2d at 144; Sepulva, supra 308 A.D. 2d at 18. See, Miller v. Lu-Whitney, 61 AD3d 1043, 1045 (3d Dept. 2009) citing to Mtr. Of Rosenblum, 284 A.D. 2d 820, 821 (3d Dept. 2001), Klugman v. Laforest, 138 A.D. 3d 1185, 1186 (3d Dept. 2001). The Statute’s exclusion of testimony is “specifically limited to testimony received upon the trial of an action or proceeding.” Mtr of Estate of Lockwood, 234 A.D.2d 782, 782 (3d Dept. 1996). See also, In re Estate of Thomas, 124 A.D.3d 1235 (4th Dept. 2015). The Statute should only be used as a shield to protect the dead man so that no one could take advantage of his estate or reap a benefit when he was not there to defend himself, and the protection is waived if the estate’s representative elicits testimony from an interested party that would otherwise fall within the statute’s bar, Klugman v. Laforest, 138 A.D. 3d 1185, 1186 (3d Dept. 2016) citing to CPLR 4519. See, Mtr. of Wood, 52 NY2d 139, 145 (1981).However, the commentaries to CPLR §4519 state that it is inapplicable to documentary evidence, and that an adverse party’s introduction of a document written by the decedent does not, by itself, constitute “testimony” against the estate. McKinneys C4519.1 See, Miller v. Lu-Whitney, supra, 61 A.D.3d at 1046; Acevedo v. Audobon Mgmt Inc., 280 A.D. 2d 91, 95 (2d Dept. 2001). Introduction of documentary evidence signed by a decedent does not run afoul of the statute “as long as the document is authenticated by a source other than an interested witness’s testimony concerning a transaction or communication with the deceased.” Mtr. Of Press, 30 A.D. 3d 154, 156-57 ( 1st Dept. 2006) citing to Acevedo, supra, 280 A.D. 3d at 95.Based upon the above precedent, this Court issued a preliminary ruling allowing Exhibit A into evidence, and stated that “(t)he few cases that I’ve seen mean that if somebody could authenticate a document independent of what he said to somebody, it can be outside of the dead man’s statute” (Tr. 6/03 at 81-82). The Court explained that at this juncture, Han was just authenticating a document and not testifying about communications he had with Vitarelli as to the meaning of the lease, which would be precluded under the Dead Man’s Statute (Tr. 6/03 at 81-83).7Counsel for plaintiff replied that the only issue before the Court was whether there was an option and queried how the lease with the option could be admitted into evidence since Vitarelli was dead and his client Bridge Street LLC was not in a position as a successor in interest to testify about the authenticity of anything (Tr 6/03 at 42-43). Defendant contended that plaintiff was improperly using the Dead Mans Statute as a sword, rather than as a shield ,by affirmatively bringing an action seeking a declaration that the option did not exist or was unenforceable, or in the alternative, that Han never exercised it, which itself relied upon the assertions of the dead man — i.e. Vitarelli. It also asserted that prior pleadings in the same action were always before the Court and that the statements included therein were judicial admissions. Specifically,
