The opinion of the court was delivered by: HAROLD BAER, JR.
HAROLD BAER, JR., District Judge,
1. Does Basquiat's waiver of his objection based on CPLR 4519 at the first trial, allow Rosenfeld to testify about her transactions with the decedent at the retrial?
2. Is Rosenfeld entitled to a jury instruction concerning the effect of CPLR 4519, if I exclude her live testimony?
3. Is Rosenfeld's prior trial testimony admissible in evidence at the retrial?
Federal Rule of Evidence 601 provides that:
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with state law. (Emphasis added).
When state law supplies the substantive rule of decision, federal courts apply state "Dead Man's Statutes" to determine witness competency. See Moore's Federal Practice, Vol. 10, Art. VI, § 601.06. New York state law governs the substantive issues in this diversity case. The parties do not dispute that New York's Dead Man's Statute determines Rosenfeld's competence to testify. The Statute provides, in substance, that any person "interested in the event" may not testify in her own behalf against certain protected persons with a specified relationship to a decedent (here decedent's executor) concerning a transaction or communication with the decedent. CPLR 4519 (McKinney 1992).
An otherwise disqualified witness may testify against protected persons as to a transaction or communication with a decedent or mentally ill person if the protected person waives the statute. A party entitled to invoke CPLR 4519 waives it if the party fails, intentionally or otherwise, to object at trial to the incompetency of a disqualified witness who testifies in her own behalf concerning a transaction or communication with the decedent or mentally ill person. See, e.g., Dean v. Halliburton, 241 N.Y. 354, 150 N.E. 141 (1925); Matter of Estate of Mastrianni, 55 A.D.2d 784, 389 N.Y.S.2d 914 (1976). At the first trial Basquiat could have invoked the statute, but he withdrew his objection to Rosenfeld's competency as a witness in light of Judge Griesa's proposed jury instruction.
Rosenfeld argues, without citing any authority, that Basquiat's waiver of protection under the Dead Man's Statute at the first trial automatically precludes him from asserting it at retrial. I disagree. "Objections not raised at the first trial of the case may be urged at a later trial and are not waived, even though the later trial is one de novo on appeal or on remand." Graham, Handbook of Federal Evidence, § 103.4 (3rd ed. 1991). While the instant retrial is neither an appeal nor on remand a de novo trial following a mistrial also revives waived objections in circumstances such as this. Therefore, Basquiat may object anew to Rosenfeld's testimony made incompetent by the Dead Man's Statute. However, if Basquiat renews his objection, I agree with Judge Griesa that I must instruct the jury about why Rosenfeld, the only surviving witness, cannot testify about her dealings with the decedent.
Federal Rule of Evidence 804(b)(1) provides that the hearsay rule does not exclude testimony of an "unavailable" witness given at a prior trial "if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." The parties do not dispute that Basquiat had ample opportunity and similar motive to cross-examine Rosenfeld's testimony ...