The opinion of the court was delivered by: Denise Cote, District Judge
This Opinion addresses respondent Donald Kummerfeld's ("Mr. Kummerfeld") motion in limine to preclude, inter alia, the admission of the live testimony of Elizabeth Kummerfeld ("Ms. Kummerfeld") at trial. For the following reasons, petitioner Cordius Trust will be permitted to introduce the previously designated excerpts of Ms. Kummerfeld's deposition testimony into evidence; no evidence concerning Ms. Kummerfeld's competency at the time she gave that deposition testimony shall be admitted at trial.
This lawsuit was initiated on May 4, 1999, when Cordius Trust filed a complaint seeking payment on a promissory note executed by Ms. Kummerfeld, on behalf of herself and Kummerfeld Associates, Inc. ("KAI"), a corporation of which she and Mr. Kummerfeld are the only two shareholders. Ms. Kummerfeld was deposed at least three times in late 1999 and early 2000 in connection with Cordius Trust's lawsuit. At each deposition, she was represented by counsel, and no objection was made as to her competency. On April 11, 2000, Cordius Trust was awarded judgment (the "April 2000 Judgment") in the amount of $1,418,000 plus interest and reasonable attorneys fees and costs.
Following the April 2000 Judgment, Ms. Kummerfeld was deposed at least four more times by Cordius Trust during 2000 and 2001, presumably in an effort to secure payment on the debt. Again, on each occasion she was represented by counsel and no objection was made as to her competency. The April 2000 Judgment having not been paid, however, Cordius Trust moved on March 25, 2003, pursuant to Federal Rule of Civil Procedure 69, for the issuance of a writ of execution and turnover order piercing the corporate veil of KAI to render Mr. Kummerfeld's personal assets amenable to attachment. Cordius Trust's Rule 69 motion was granted on March 30, 2004, see Cordius Trust v. Kummerfeld, No. 99 Civ. 3200, 2004 WL 616125 (S.D.N.Y. Mar. 30, 2004), and judgment was entered in Cordius Trust's favor on April 30. Following a partial reversal by the Second Circuit in an order dated October 4, 2005, see Cordius Trust v. Kummerfeld, 153 Fed. App'x 761 (2d Cir. 2005), the action was scheduled for trial set to begin January 14, 2008.
Prior to the instant motion in limine, dated December 4, 2007, the issue of Ms. Kummerfeld's competency had never been raised before this Court. Indeed, over the course of the litigation, KAI, Ms. Kummerfeld, and Mr. Kummerfeld have repeatedly taken actions evidencing their belief that Ms. Kummerfeld is competent to participate in this civil litigation. For example, Ms. Kummerfeld appeared before the Court on several occasions. At a pretrial conference held on December 21, 1999, Ms. Kummerfeld testified for nearly an hour about her failure to comply with discovery obligations. She was represented by counsel and cross-examined by opposing counsel; Mr. Kummerfeld was present during the examination. Her answers were responsive, coherent, and intelligent. On January 28, 2000, she appeared and was questioned concerning the withdrawal of counsel representing her and KAI. Presumably Mr. Kummerfeld, as the chairman, treasurer, and only other shareholder in KAI, consented to Ms. Kummerfeld's appearance in court to dismiss the corporation's counsel. At that session, Ms. Kummerfeld's answers were also responsive and cogent. Shortly thereafter, Ms. Kummerfeld sought to testify at the February 7, 2000 trial of Cordius Trust's claims against her and KAI. That request was denied due to her failure, inter alia, to identify any testimony that she intended to give that was relevant to the issues to be tried; that is, whether the note she executed in favor of Cordius Trust on behalf of herself and KAI was enforceable. In 2003, in the initial Rule 69 proceeding before the Magistrate Judge, Cordius Trust introduced deposition testimony from Ms. Kummerfeld, including excerpts from four of the five depositions Cordius Trust seeks to introduce at the January 14, 2008 trial. Mr. Kummerfeld made no objection to the Court's consideration of that testimony, and indeed offered other excerpts from her depositions on his own behalf. Only after the Magistrate Judge ruled against him did Mr. Kummerfeld object to this Court's consideration of Ms. Kummerfeld's deposition testimony. See Cordius Trust v. Kummerfeld, No. 99 Civ. 3200, 2004 WL 616125, at *7 n.11 (S.D.N.Y. Mar. 30, 2004). Even then, the objection was not based upon her competency. Mr. Kummerfeld argued instead that her deposition testimony should have been excluded because Ms. Kummerfeld was available for cross-examination at her deposition, but he did not have the opportunity to cross-examine her because he was not named in the underlying litigation. Id. In January 2007, Mr. Kummerfeld again submitted Ms. Kummerfeld's deposition testimony from 2000 and 2001, this time as evidence in support of his motion for summary judgment on the issues to be litigated at the January 2008 trial. No reference was made in the summary judgment proceedings to Ms. Kummerfeld's competency at the time of her depositions.
During the pendency of this civil litigation, on May 24, 2000, Ms. Kummerfeld was charged in a twenty-six-count Superseding Indictment along with four co-defendants. See United States v. Mintus, No. 00 Cr. 49 (KMW). The record of Ms. Kummerfeld's criminal proceedings does not reflect that any issue was raised as to her competency to stand trial. She was convicted after jury trial on August 17, 2001 as to both counts in which she was named.
It appears from the docket sheet of Ms. Kummerfeld's criminal conviction that the first time an issue was raised as to her competency was on June 12, 2002, when the Honorable Kimba M. Wood was informed that Ms. Kummerfeld's counsel intended to file a motion for downward departure for diminished capacity.
On April 22, 2003, Judge Wood ordered Ms. Kummerfeld to submit to psychological testing to determine whether she was competent to be sentenced. Consideration of these issues extended over the course of nearly four years. Following submissions from the Government and Ms. Kummerfeld in late 2007, Judge Wood notified the parties on November 19 that she was considering a non-incarcerative sentence for Ms. Kummerfeld "based on defendant's significantly reduced mental capacity (1) at the time she committed the crimes for which she will be sentenced, and/or (2) at the time of sentencing." United States v. Mintus, No. 00 Cr. 49 (Docket Entry No. 405). On November 27, Judge Wood sentenced Ms. Kummerfeld to time served and ordered her to pay a mandatory $200 special assessment.
At sentencing, Judge Wood found that Ms. Kummerfeld suffered from an arterio-venous malformation in the left anterior frontal lobe of her brain that interfered during the time of the crime with her ability "to exercise executive functions and her ability to evaluate the actions of others." Ms. Kummerfeld's counsel explained that her mental condition was not known at the time of the trial, but was only discovered afterwards. Nonetheless, counsel claimed that it "undoubtedly impacted her thinking and her ability to create a mental intent." Following a statement by Ms. Kummerfeld, Judge Wood determined that Ms. Kummerfeld "suffered from a diminished mental capacity, from a significantly reduced mental capacity when she committed the offense." Judge Wood further found that Ms. Kummerfeld's "significantly reduced mental capacity contributed substantially to her commission of the offense." Ms. Kummerfeld's "significantly reduced mental capacity" was "the single most important factor in sentencing."
In the joint pre-trial order for the jury trial on this civil action, filed on December 7, 2007, Cordius Trust expressed its intention to call Ms. Kummerfeld as a witness to "testify as to the fraud committed by KAI and KAI's failure to pay the judgment it owes to Cordius Trust." Mr. Kummerfeld submitted a motion in limine, dated December 4, seeking to preclude Ms. Kummerfeld's live testimony, or, should that testimony be permitted, to admit evidence concerning her diminished mental capacity.*fn1 Cordius Trust opposed Mr. Kummerfeld's motion, but offered that, if it were permitted to designate portions of Ms. Kummerfeld's deposition testimony taken between December 1, 1999 and November 19, 2001 in lieu of her live testimony, and such portions of her testimony were admitted into evidence without any accompanying evidence concerning her mental state, it would not object to preclusion of Ms. Kummerfeld's live testimony.
At the final pretrial conference held on December 20, 2007, Mr. Kummerfeld expressed his objection to the admission of these transcripts unaccompanied by evidence of Ms. Kummerfeld's mental state. Decision on the motion in limine was reserved, and petitioner was ordered to designate specific transcript excerpts to be presented to the jury at trial. That designation, received on January 7, included testimony from depositions taken January 14, 2000, June 1, 2000, October 15, 2001, October 24, 2001, and November 19, 2001.
The claims at issue in this trial are governed by New York state law. Accordingly, questions concerning the competency of witnesses are also governed by New York state law. See Fed. R. Evid. 601; Rosenfeld v. Basquiat, 78 F.3d 84, 88 (2d Cir. 1996). Under New York law, where the mental capacity of a witness is at issue, "[t]he test is whether the prospective witness has sufficient intelligence to understand the nature of any oath and to give a reasonably accurate account of what he has seen and heard vis-à-vis the subject about which he is interrogated." People v. Parks, 359 N.E.2d 358, 366 (N.Y. 1976) (citation omitted). The New York Court of Appeals has never squarely ruled on the issue of how to adjudge the competency of a deponent whose deposition testimony is sought to be introduced at a later trial. Presumably, the court's inquiry would be whether, at the time the deponent took the oath, she had "sufficient intelligence" to understand the nature of that oath and to give a reasonably accurate account of the facts. Should the witness's testimony be admitted, the court has wide discretion to admit evidence concerning the witness's mental ...