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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, October 26, 2007

Dead Man's Chest: New York Court of Appeals Will Hear Dead Man's Statute Appeal

Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate.  The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.

Or, an attorney charged with taking money from his now deceased client could not testify that his client told him he could take the money as payment for his previous pro bono representation.  This is the exact situation the New York Supreme Court, Appellate Division, First Judicial Department (one of New York's four intermediate appellate courts) faced when deciding whether to sanction Manhattan attorney Richard A. Zalk. (The New York Dead Man's Statute can be found at NY CPLR 4519).

Zalk represented Arthur and Ruth Gellman starting in 1970.  Arthur died in 1990, and, according to Zalk, he continued to represent Ruth over the next 10 years, without billing her, in connection with her ownership of an apartment.  In 2000, Ruth sold the apartment for $2 million, $200,000 of which was paid into Zalk's escrow account as a down payment.

After closing, Ruth died, and Zalk kept $172,151 in the escrow account for himself.  He claimed that Ruth told him to keep this amount in the account as payment for his 10 years of unpaid legal services.  The court found that pursuant to the New York Dead Man's Statute, Zalk could not testify to this alleged promise in the guilt phase of his disciplinary hearing, and it suspended Zalk from the practice of law for two years. See In re Zalk, 842 N.Y.S.2d 377 (N.Y.A.D. 1 Dept. 2007) (The court found that Zalk's testimony was "against" Ruth's estate even though her daughters were not parties to the hearing because (1) it went against their competing claim to the money, and (2) the court could have ordered that Zalk make monetary restitution to Ruth's daughters).  The court did, however, find that Zalk could testify to this alleged promise in the phase of his hearing determining the nature of the discipline to be imposed on him. See id. at 383.

The New York Court of Appeals (the equivalent of most state's supreme courts) has now agreed to hear Zalk's appeal.  I don't see how the New York Court of Appeals could change the evidentiary ruling.

Zalk was clearly an interested party as he stood to acquire $172,151 if Ruth's alleged promise was true.  Furthermore, Ruth was clearly deceased at the time that Zalk wanted to testify.  The reasoning behind the statute, protecting the deceased's estate from "plundering," was clearly at play in the case.  And the court's argument about why Zalk's testimony went "against" Ruth's estate seems pretty persuasive. Therefore, under New York's Statute, Zalk was precluded from testifying.

The more interesting question for me is whether New York will follow the lead of most states and abolish its Dead Man's Statute. See Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007) (noting how most states have repealed their Dead Man's Statutes).  The most recent example I have found involved Florida repealing it's Dead Man's Statute in the wake of the infamous Terri Schiavo case.  Of course, it would be the New York legislature, and not the New York Court of Appeals, that would potentially make such a change.

-CM

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