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July 14, 1981

Constance WAGNER, Plaintiff,
Sheila TUCKER, As Administratrix of the Estate of James Rooney, Esq., Defendant

The opinion of the court was delivered by: LUMBARD

Plaintiff Constance Wagner (now Mrs. Constance Wooley), a citizen of New York State, brought this diversity action against Sheila M. Tucker, as Administratrix of the Estate of James R. Rooney. Defendant is a citizen of Connecticut. Mrs. Wooley alleged that Mr. Rooney, an attorney, had negligently failed to institute a personal injury action on her behalf within the permissible statutory period, thereby depriving her of the damages she would have recovered in such an action. After a one-day trial to the court, sitting without a jury, the court held from the bench that Mrs. Wooley had established defendant's liability. At a second one-day trial, the parties presented evidence on the issue of damages. The court now directs that judgment be entered in plaintiff's favor in the amount of $ 25,000.

The present action arose out of an automobile collision which occurred on the night of December 8, 1972 on the Montauk Highway in Southampton, Long Island. Plaintiff, 19 years old at the time, was riding in the front seat of a car driven by Carlos Rivero, though owned by Jose Rivero, which collided with a car driven by Gary Mark Kutak and owned by Robert Kutak. According to plaintiff, before the collision Carlos Rivero had been driving at excessive speeds and was swerving into the lane for oncoming traffic. He had refused to drive any slower, despite plaintiff's request that he do so. He also refused to stop the car and let her out.

After the accident, plaintiff was taken to Southampton Hospital where she was treated in the emergency room. Her parents were notified of the accident, and her father then drove her from Southampton to the Yonkers Professional Hospital. She remained there for three or four days and received further medical care.

 Defendant did not dispute any of the foregoing facts concerning the accident at trial. Nor was there any question that no action was ever brought on plaintiff's behalf for injuries sustained as a result of the automobile accident. Instead, the only issue at trial concerned whether plaintiff, who was a minor at the time of the accident, had through her father enlisted the professional services of James Rooney, an attorney admitted to practice in the State of New York whose offices were in New Rochelle, New York. Since Mr. Rooney passed away on July 6, 1977, the effect of New York's so-called Dead Man's Statute, CPLR § 4519, applicable in this diversity suit by virtue of Federal Rule of Evidence 601, was called into question.

 CPLR § 4519 states:

a party or person interested in the event, or a person from, through or under whom such a party or interested person derives his interest ... shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person ... concerning a personal transaction or communication between the witness and the deceased person....

 Because of the rule, plaintiff was clearly incompetent to testify in order to establish that an attorney-client relationship had been created with Mr. Rooney. Moreover, her father, William Wagner, was also incompetent since he had (due to his daughter's age) allegedly entered the contract with Mr. Rooney for his services on behalf of the plaintiff in the present suit. Because plaintiff would be the third-party beneficiary of a contract between her father and Mr. Rooney, her father was a "person from, through or under whom ... a party ... derives his interest." See, e.g., Duncan v. Clarke, 308 N.Y. 282, 125 N.E.2d 569 (1955); Matter of Isaacs, 86 Misc.2d 954, 383 N.Y.S.2d 976 (Surr.Ct.1976); Tepper v. Tannenbaum, 87 Misc.2d 829, 386 N.Y.S.2d 936, 939 (Sup.Ct.N.Y.Co.1976), rev'd on other grounds, 65 A.D.2d 359, 411 N.Y.S.2d 588 (1978).

 However, plaintiff's mother would be allowed to testify if she merely witnessed, but did not enter into the contract between her husband and Mr. Rooney. She would not be a person "from, through or under" plaintiff claimed. Nor would she be disqualified under the statute as a party "interested in the event," as New York cases have held that the mother of a party is considered to have a legal interest in the recovery too remote to come within the prohibition of the statute. See, e.g., Duncan v. Clarke, supra. See also Curtis v. Hennequin, 27 Misc.2d 1042, 212 N.Y.S.2d 796 (Sup.Ct. Nassau Co. 1961).

 Accordingly, the court permitted Mrs. Wagner to testify concerning her husband's and daughter's dealings with Mr. Rooney. She testified that she and her husband had visited Mr. Rooney at his office shortly after the plaintiff's accident. Her husband asked Mr. Rooney if he would represent plaintiff in regard to the accident, and Mr. Rooney replied that he would. She observed her husband signing an agreement with Mr. Rooney and permission forms authorizing Rooney to obtain necessary medical records. Mrs. Wagner did not sign any of these documents.

 Mrs. Wagner also testified that she spoke to Mr. Rooney many times in the subsequent months. She would ask him how the case was proceeding. After Rooney's death she was told by his former law associate that there was no record of Rooney's having accepted the matter. Her testimony thus established her competence and was admitted as evidence of the retention of Rooney.

 Also admitted into evidence was a copy of a letter from Rooney to William Wagner, plaintiff's father, dated January 31, 1974. The first part of the letter recited bills received and sent to an insurance company in regard to an earlier accident involving the plaintiff which had occurred in 1971. It also asked for any additional bills relating to the accident. The second portion involved the 1972 accident, referred to as the "Montauk Highway accident," and also listed the medical bills Rooney had received and also asked for any additional related bills which plaintiff or her father may have received. The postscript to the letter stated that a complaint in the lawsuit concerning the 1971 accident was attached.

 There was also admitted into evidence a check from the Empire Mutual Insurance Company mailed to Rooney which concerned the 1972 accident. The check, in the amount of $ 1,085.75 was made out to William and Irene Wagner, individually and as parents and guardians of Constance Wagner, and James Rooney as attorney. The check lists the insured as Joseph Rivero. The check was endorsed by "James Rooney as attorney."

 Based upon this evidence, and other competent testimony by plaintiff and her father, the court concluded that Rooney had agreed to represent plaintiff concerning the 1972 accident. Thus, an attorney-client relationship had been established. No evidence was introduced by the defense.

 The court therefore concluded that Rooney had been retained as plaintiff's attorney in regard to the 1972 accident, that Rooney had failed to institute an action based upon the accident, and that plaintiff had a valid cause of action arising out of that accident on which she could have recovered her resulting damages. Therefore, the court ruled from the bench that the defendant's liability had been established. See, e.g., Carpenter v. Weichert, 51 A.D.2d 817, 379 N.Y.S.2d 191 (1976); ...

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