Lewin v. The Richard Avedon Foundation
Filing
191
OPINION & ORDER: For the foregoing reasons, Defendant's Motion in Limine is GRANTED. The Court reserves the right to change its ruling if Defendant waives the statute's application during trial through the introduction of evidence. Th e Court urges the parties to make a final attempt to settle their remaining claims, and the parties shall inform Court of their joint decision about pursuing settlement by April 1, 2016. (As further set forth in this Opinion) (Signed by Judge Kimba M. Wood on 3/25/2016) (kl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GIDEON LEWIN,
Plaintiff,
11-CV-8767 (KMW) (FM)
OPINION & ORDER
-againstTHE RICHARD AVEDON
FOUNDATION,
Defendant.
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KIMBA M. WOOD, United States District Judge:
Defendant, The Richard Avedon Foundation, moves to preclude Plaintiff, Gideon Lewin,
from testifying at trial concerning his communications or transactions with his employer, the
deceased photographer Richard Avedon, concerning ownership of approximately two dozen
prints now in Plaintiff’s possession. Defendant contends that such testimony at trial is barred by
New York’s dead man’s statute.1 For the reasons set forth below, the Court GRANTS
Defendant’s Motion in Limine, but reserves the right to change its ruling if Defendant opens the
door at trial to otherwise prohibited testimony.
I.
RELEVANT BACKGROUND
In 2011, Plaintiff filed this lawsuit, seeking a declaration that he owns nearly two dozen
unrecorded Richard Avedon prints. Defendant counterclaimed for conversion and replevin. The
Court, in its summary judgment decision, dismissed Defendant’s claim for conversion and
1
The material includes prints from: the Minneapolis Portfolio (Doc No. 84 at ¶¶ 579-603); the Hollywood
Prints (id. at ¶¶ 604-607); the Kim Novak transparency (id. at ¶¶ 570-73); The Graduate print (id. at ¶¶ 574-78); the
Stravinsky Triptych (id. at ¶ 622); the Henry Miller print; the “contact-style” sheets of the model Jean Shrimpton
(Doc No. 104 at ¶ 29); the “contact-style” sheet of former President Eisenhower (id.); and the Studio printers’
notebooks (Doc No. 122 at ¶¶ 564-569).
1
replevin with respect to approximately 4,200 negatives Plaintiff possesses, finding the claim
time-barred, but the Court reserved for trial the question of whether Plaintiff is the rightful owner
of the unrecorded prints in his possession. See [Doc. No. 165].
Defendant anticipates that Plaintiff will seek to testify at trial that Mr. Avedon gifted him
the contested prints before Mr. Avedon’s death in 2004. Defendant argues that New York’s dead
man’s statute bars Plaintiff from testifying about his communications and transactions with Mr.
Avedon regarding the prints. See [Doc. No. 184, 190]. Plaintiff disagrees, and argues that
Defendant has waived application of the dead man’s statute by introducing certain evidence in its
summary judgment filings. See [Doc. No. 188].
II.
LEGAL STANDARD
New York’s dead man’s statute provides, in relevant part, as follows:
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 . . . against the executor
. . . of a deceased person . . . concerning a personal transaction or communication
between the witness and the deceased person . . . except where the executor . . . is
examined in his own behalf, or the testimony of a . . . deceased person is given in
evidence . . . , concerning the same transaction or communication.
N.Y. C.P.L.R. 4519.
New York’s dead man’s statute applies to state law claims adjudicated in federal court.
See Rosenfeld v. Basquiat, 78 F.3d 84, 88 (2d Cir. 1996). The statute deems testimony from an
interested party “inadmissible where death has prevented the estate from giving its version of the
events.” Id. at 92; see also Fireman’s Fund Ins. Co. v. Wilner, No. 10-CV-597, 2012 WL
628504, at *4 (E.D.N.Y. Feb. 27, 2012) (quoting In re Zalk, 892 N.E.2d 369, 374 (2008)) (noting
that the dead man’s statute aims “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.”).
2
In New York, a party waives the protection of the dead man’s statute when the executor
of the deceased testifies, on direct examination at trial, to the personal transaction or
communication at issue. See Matter of Wood’s Estate, 418 N.E.2d 365, 367 (N.Y. 1981). The
interested party may then provide his or her account of that same transaction or communication
in response. However, “the waiver provision of the statute is construed narrowly.” Clark v.
Meyer, 188 F. Supp. 2d 416, 421 (S.D.N.Y. 2002) (Kaplan, J.); see also Martin v. Hillen, 36
N.E. 803, 804 (N.Y. 1894) (noting that when an interested party is permitted to testify to the
transaction or communication, that testimony “must be confined strictly to the same transaction
or communication to which the executor or administrator has already testified in his own
behalf.”).
III.
DISCUSSION
A. The Dead Man’s Statute Applies
The dead man’s statute applies to disputed claims here, because the claims are governed
by New York state law and Plaintiff is an interested party. First, Plaintiff’s claim for declaratory
judgment as to ownership of the unrecorded prints and Defendant’s counterclaims for conversion
and replevin are governed by state law. See Hoelzer v. City of Stamford, Conn., 933 F.2d 1131,
1135-38 (2d Cir. 1991) (applying New York state law to declaratory judgment action concerning
ownership of murals); Fed. R. Evid. 601 (“. . . state law governs the witness’s competency
regarding a claim or defense for which state law supplies the rule of decision.”). Second, Lewin
is clearly an interested party who may not testify to any personal transaction or communication
he had with Mr. Avedon, unless Defendant has waived the protection of the dead man’s statute.
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B. Defendant Has Not Waived the Statute’s Application
Plaintiff’s only argument against application of the dead man’s statute—that Defendant
waived the statute’s application at trial by including in its summary judgment filings otherwise
excludable evidence—fails for two reasons: (1) evidence submitted in connection with summary
judgment does not effectuate a waiver at trial of the protection of the dead man’s statute; and (2)
even if it did, none of the referenced evidence concerned the specific transactions and
communications at issue here.2
First, Defendant cannot waive application of the dead man’s statute before trial begins.
The New York Court of Appeals and Judge Koeltl have noted that, by its very language, the dead
man’s statute “may not be asserted or waived until the trial.” Phillips v. Joseph Kantor & Co.,
31 N.Y.2d 307, 313 (1972); Pro Bono Investments, Inc. v. Gerry, No. 03-CV-4347, 2008 WL
2354366, at *1 (S.D.N.Y. June 9, 2008) (Koeltl, J.) (“The fact that Federal Rule of Civil
Procedure 56(e) requires exclusion of evidence on summary judgment motions which the dead
man’s statute would exclude at trial is a separate issue from whether submitting such evidence in
connection with a motion for summary judgment effectuates a waiver of the benefit of the dead
man’s statute through trial.”).
Second, even if evidence offered in connection with summary judgment could effectuate
a waiver of the statute’s protections at trial, which it cannot, none of the evidence submitted by
Defendant concerned the specific transactions and communications at issue here. See Clark, 188
F. Supp. 2d at 421 (finding no waiver based on testimony concerning “unspecified
communications” lacking any link to the “transaction or communication” at issue). None of the
generalized evidence that Plaintiff cites includes testimony about whether Mr. Avedon gifted
While not relevant to Defendant’s Motion in Limine, the Court acknowledges Plaintiff’s potential statute
of limitations argument. See (Pl.’s Opp’n to Def.’s Mot. in Lim., 2-4 [Doc. No. 188]).
2
4
Plaintiff the contested prints.3 The only specific testimony Plaintiff identifies was elicited by
Plaintiff pretrial and thus cannot serve as waiver of the dead man’s statute’s protections. 4 See
Sepulveda v. Aviles, 762 N.Y.S.2d 358, 366 (1st Dep’t 2003) (“[T]he rule is that testimony
elicited on cross-examination of a personal representative of the deceased by the adverse party
does not waive the protections of the statute.”); Sklaire v. Turner’s Estate, 12 A.D.2d 386, 388
(3d Dep’t 1961)) ((“[C]ross-examination of the personal representative or survivor . . . does not
‘open the door’ to the adverse party to testify concerning the same transaction, as in such a case
the personal representative or survivor is not ‘examined in his own behalf’ within the meaning of
the exception.”). Therefore, Defendant has not waived its right to invoke the dead man’s statute.
IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion in Limine is GRANTED. The Court
reserves the right to change its ruling if Defendant waives the statute’s application during trial
through the introduction of evidence.
The Court urges the parties to make a final attempt to settle their remaining claims, and
the parties shall inform Court of their joint decision about pursuing settlement by April 1, 2016.
SO ORDERED.
DATED:
New York, New York
March 25, 2016
Plaintiff argues that Defendant’s submission of the following evidence before trial effectuates a waiver of
the dead man’s statute: “‘The contact sheets that Mr. Avedon reviewed and the Work Prints were all typically
destroyed and Studio employees were expected to shred any other materials that Mr. Avedon instructed them to
destroy’; the Studio’s policies prohibited the removal of negatives, contact sheets, prints, photographs, and
notebooks from the premises and kept as a Studio personal property; ‘Mr. Avedon rarely gifted his prints to the
Studio Staff’; ‘Of the at least 21 Avedon prints currently in Mr. Lewin’s possession, only two of them are recorded
as gifts in the Registry that Mr. Avedon’s Studio maintained, and both are signed’; and ‘Lewin told Laura Avedon
that Mr. Avedon only gifted him signed prints and that he never received unsigned prints because it was against
Studio policy’ which Lewin denied saying.” (Pl.’s Opp’n to Def.’s Mot. in Lim., 1-2) (internal citations omitted).
4
Plaintiff improperly argues that a Defense witness’s deposition testimony constitutes a waiver. Id.
3
5
/s/
KIMBA M. WOOD
United States District Judge
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