Opinion
157, 11556-0120.
Decided March 30, 2004.
Farrell Fritz, P.C., EAB Plaza, Bessemer Trust Company N.A., Uniondale, New York. Attorneys for Petitioner.
McCoyd, Parkas Ronan, LLP, Attorneys for Objectants Florence S. Furst, Thomas A. Alto and Lauren Furst, Garden City, New York Winston Strawn, LLP, Attorneys for Respondents Serina M. Sanchez, Peter A.B. Martin and Esmond B. Martin, Jr. New York, NY, Dunnington, Bartholow Miller, LLP, Attorneys for Alastair B. Martin, New York, NY.
In this contested probate proceeding, Alastair Martin, a brother of the decedent and non-party, moves to quash a subpoena ad testificandum and a subpoena duces tecum and for the issuance of a protective order (CPLR 3103) which is opposed by the objectants.
Esmond Martin was survived by three children, Serina M. Sanchez, Peter A.B. Martin, and Esmond B. Martin, Jr., who take the bulk of his estate under the Will of December 16, 1997 and the codicil of February 17, 2002. An inventory filed by the co-preliminary executor values the testamentary estate at over $33 million. However, it is also alleged that the decedent by his exercise of various limited powers under his mother's Will and a living trust agreement controlled another $120 million.
The contest is brought by Florence Furst, described variously as a business manager or employee of the decedent for over thirty years. By Article Second of the Will, she was initially bequeathed tangible personal property inventoried at $12,500,000. In addition, Article Fourth of the Will provides a bequest of an investment partnership valued at over $900,000 to the Furst Irrevocable Trust.
The codicil, however, revokes those bequests to Ms. Furst and the Furst Trust as a result of which she has filed objections to probate of the codicil as a person adversely affected (SCPA 1410). Objections to the codicil have also been filed by Lauren Furst, Florence's daughter and trustee of the Furst Trust, and both Florence Furst and Thomas Alto as named executors under the Will.
In support of the motion for a protective order, an affidavit of Alastair's psychiatrist, Robert D. McMullen, describes Alastair as an 88 year-old who suffers from depression and severe anxiety disorders and concludes if he were forced to testify "in court or at home" it would likely "precipitate a major decompensation which would be life threatening." Two earlier letters by Dr. McMullen attached to the moving papers make no mention of the deposition likely causing a life threatening situation but merely refer to a likely "major decompensation." In addition, Alastair's own affidavit in support of the motion merely states that "the deposition would be emotionally taxing and possibly dangerous to my health and well being." The deposition is also opposed on the ground that the information sought is not "material and necessary" ( see, CPLR 3101[a]).
CPLR 3101(a) provides that a protective order may be issued to prevent "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." Generally, the proponent of such a motion must make an appropriate factual showing to be entitled to such relief ( Hartheimer v. Clipper, 288 AD2d 263; Willis v. Cassia, 255 AD2d 800; State of New York v. General Elec. Co., 215 AD2d 928). Essentially, in determining whether a protective order to limit discovery should be issued, the general preference for allowing discovery must be balanced against the objecting party's prerogative to be free of unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice ( Matter of Brignola v. Pei-Fei Lee, M.D.P.C., 192 AD2d 1008).
The test under CPLR 3101(a) is whether the discovery sought is "material and necessary"; it is one of relevance and usefulness and reason ( Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406). The courts have consistently encouraged liberal pretrial disclosure ( Williams v. J.B. Hunt Transport Services, Inc., 162 AD2d 524 citing Cynthia B. v. new Rochelle Hosp. Med. Center, 60 NY2d 452, 461). The objectants claim that Alastair has information directly bearing on the validity of the codicil, notwithstanding Alastair's claim to the contrary. Two of the attesting witnesses to the codicil, Jorge Sanchez, the husband of the decedent's daughter Serina, and Tracey Chatell-Sanchez, Serina's daughter-in-law, both confirmed in their depositions that Alastair had visited his brother at his Old Westbury estate only two days before execution of the codicil. Mr. Sanchez also testified he had arranged Alastair's visit in a telephone conversation and that during that conversation Alastair asked him "if I knew what my father-in-law's plans were for Knole [decedent's residence]." Sanchez replied "mostly everything is going to Florence [Furst]." Alastair is said to have responded "What?" and added "And how do you know?" Sanchez informed him that he had read the Will to which Alastair replied "I am horrified. Is there anything I can do?" Sanchez told him "I don't think there is much you can do unless you want to talk to your brother." Alastair then stated he would then talk to his brother when he came over.
The obvious issue the foregoing testimony raises is one of possible exercise of undue influence. The burden of establishing undue influence is always on the objectant ( Matter of Walther, 6 NY2d 49). Because direct proof of undue influence is seldom available, undue influence must be established by demonstrating all the facts and circumstances surrounding the testator at the time the Will is prepared including the nature of the Will, family relations, the testator's physical and mental condition, whether he was dependant on or subject to the control of any person, and the opportunity of that person to exercise the influence ( Rollwagen v. Rollwagen, 63 NY 504). In most cases this type of evidence is what the objectant must produce to raise an inference supporting undue influence ( Rollwagen v. Rollwagen, 63 NY 504; see also, Matter of Moccio, 177 AD2d 627; Matter of Du Bray, 132 AD2d 914; Matter of Fox, 100 AD2d 744). A review of Sanchez's deposition clearly reveals that a deposition of Alastair would be "material and necessary" (CPLR 3101 [a]) to the objectants' case.
Alastair's attorney, while vigorously opposing any deposition of his client, does state that should the court deny the motion for a protective order, the deposition should proceed on a limited number of written questions citing CPLR 3108. The objectants have offered to accommodate Alastair in any reasonable fashion as to how the deposition is to proceed but are not willing to forego an oral examination.
Tied to the mode of the deposition is the question of the sufficiency of the medical evidence supporting the motion for a protective order. In a number of decisions granting a protective order for health reasons the medical evidence is "uncontradicted" ( Button v. Guererri, 298 AD2d 947; Verini v. Bochetto, 49 AD2d 752; In re McCorhill Publishing, Inc., 91 B.R. 223 [S.D. New York]). However, here the objectants have had no opportunity to challenge the conclusions drawn by Dr. McMullen that the Alastair's deposition would be "life threatening." Moreover, at this point the court cannot ascertain whether this conclusion is truly so without further inquiry and the court may not abdicate its responsibility by unquestioningly accepting a doctor's summary opinion. The opposing party has a right for itself and on behalf of the court to examine the matter in more detail ( see, Medlin v. Andrew, 113 F.R.D. 650). Both Button v. Guererri, supra, and Verini v. Bochetto, supra, recognize, by necessary implication, the right of the party seeking the deposition to obtain medical evidence to controvert or contradict the medical evidence offered by the party or witness seeking the protective order.
Accordingly, the objectants are authorized to select a physician of their own choosing to consult with Dr. McMullen and review his medical records and examine Alastair if deemed necessary. At the court conference held on the return day of this motion, Alastair's attorney requested that if further inquiry should be made into his client's medical condition, another physician consult with Alastair's physician and review the medical records. Moreover, since Alastair himself has placed his medical condition in issue, those records should be produced forthwith ( Hoenig v. Westphal, 52 NY2d 605).
The court emphasizes that the two physicians and the attorneys involved should make every effort to come to some agreement on how the deposition is to be conducted including the time, place, persons present, allowance for rest periods for the witness, appointment of a referee to monitor the deposition, and any other accommodations short of insisting that the deposition be merely on written questions.
While written questions may be an alternative if it is eventually established that a deposition would be "life threatening," there are several reasons why oral depositions should not be routinely replaced by written questions. First, the interrogatories format does not permit the probing follow-up questions necessary in all but the simplest litigation. Second, without an oral deposition, counsel are unable to observe the demeanor of the witness and evaluate his credibility in anticipation of a trial. And finally, written questions provide an opportunity for counsel to assist the witness in providing answers so carefully tailored that they are likely to generate additional discovery disputes ( Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547; see also, Perry v. Edwards, 16 F.R.D. 131; 1 Lane Goldstein, Trial Techniques, § 622 [3d ed]; Haydock and Herr on Discovery § 16.04 [4th ed]).
If there is no satisfactory agreement arrived at as to the mode of the deposition, the objectants will be given an opportunity to examine Dr. McMullen and eventually a hearing may be required. The motion for a protective order will be held in abeyance pending further order of the court.
This is the decision and order of the court.