Opinion
No. 2020-217/C
03-20-2023
Probate proceeding, Will of William P. Baird a/k/a William P. Baird, Jr., Deceased. Petition to Invalidate the William P. Baird Revocable Trust dated November 29, 2019.
Alison Arden Besunder, Esq., Goetz Fitzpatrick, LLP, for Petitioners Angelo M. Grasso, Esq., Greenfield Stein & Senior, LLP for Respondents
Unpublished Opinion
Alison Arden Besunder, Esq., Goetz Fitzpatrick, LLP, for Petitioners
Angelo M. Grasso, Esq., Greenfield Stein & Senior, LLP for Respondents
Timothy P. McElduff, Jr., Surrogate
The Court considered the following papers on Objectants/Petitioners Mary Louise Baird Cardelli and Elizabeth Cardelli's (the "Cardellis") motion to compel certain discovery responses herein from Petitioners/Respondents W. Robert Baird, Allen Baird and Charles Baird (the "Bairds") pursuant to CPLR § 3124, together with a conditional order of sanctions and award of attorney's fees/costs incurred in making the instant motion pursuant to CPLR § 3126 and/or 22 NYCRR § 130-1.1:
1. Notice of Motion, Besunder Affirmation with Exhibits A through Y, Besunder Good Faith Affirmation with Exhibits A through D, Amended Memorandum of Law in Support and Amended Exhibits A and T, filed on February 22-23, 2023;
2. Memorandum of Law in Opposition, LeMaster Affirmation in Opposition with Exhibits 1 through 5 and Grasso Affirmation Responsive to Movant's Affirmation of Good Faith together with an Exhibit, filed on March 10, 2023.
The Parties' Contentions
The Cardellis seek to compel responses to specific demands for documents and interrogatories over the Bairds' objection. The main object of the demands and interrogatories is Barnyard Bombers, LLC, an entity that was created approximately six months after the Decedent's death.
The Bairds argue that all demands/interrogatories concerning Barnyard Bombers, LLC are beyond the scope of discovery permitted pursuant to 22 NYCRR 207.27. To the extent that the demands/interrogatories request other information/documentation, the Bairds argue that they are vague, overly broad, unduly burdensome and/or irrelevant.
Analysis
A. The motion to compel discovery responses.
The rule contained in 22 NYCRR 207.27, commonly referred to as the "3-2 Rule," provides as follows:
In any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial, the items upon which the examination will be held shall be determined by the application of article 31 of CPLR. Except upon the showing of special circumstances, the examination will be confined to a three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent's death, whichever is the shorter period.
The 3-2 Rule is not limited to the SCPA § 1404 examination. It applies to all forms of discovery demands. See, e.g., Matter of Will of Eckert, 60 Misc.3d 1007 (Sur. Ct. 2018).
In this proceeding, the Cardellis seek to invalidate the Decedent's purported revocable lifetime trust dated November 29, 2019 upon the grounds of invalid creation/funding related to an alleged power of attorney, due execution, capacity, undue influence/duress and fraud. In the joint probate proceeding, the Cardellis also seek to invalidate the Decedent's purported last will and testament dated October 31, 2019 for similar reasons. Shortly after allegedly executing these documents, the Decedent died on March 25, 2020. Thus, the time period of the 3-2 Rule runs from October 31, 2016 to March 25, 2020 with regard to the alleged will and from November 29, 2016 to March 25, 2020 with regard to the alleged trust.
Since Barnyard Bombers, LLC was formed on September 24, 2020, which was approximately six months after the Decedent died on March 25, 2020, all of the Cardellis' demands concerning Barnyard Bombers, LLC (i.e., First Demand No.13, #14, #16; Second Demand #9, #17; and Interrogatories #13, #14, #15, #16) are beyond the scope of permissible discovery pursuant to 22 NYCRR 207.27.
The time period of the 3-2 Rule may be extended, in the court's discretion, when "special circumstances" exist. Matter of Will of Eckert, 60 Misc.3d 1007 (Sur. Ct. 2018). The Cardellis have failed to demonstrate the existence of any special circumstances warranting extension of the 3-2 Rule's time period that are akin to those special circumstances recognized in the case law. Compare, e.g., In re Po Jun Chin, 55 Misc.3d 1092 (Sur. Ct. 2017) (court found sufficient special circumstances to exist to extend the 3-2 Rule time period where the course of alleged undue influence called into question certain transactions that occurred during the Decedent's life, but 4 years prior to and 3 years after the execution of the subject will).
Rights to an accounting and other relief not at issue are preserved if appropriate in the future.
Furthermore, the fact that the subject discovery demands are related to the proceeding to invalidate the trust (as opposed to invalidating the will) does not escape the application of the 3-2 Rule. Trusts, like the Decedent's here, are testamentary instruments that the law treats in the same manner as wills when it comes to challenges to their validity. See Matter of Est. of Davidson, 177 Misc.2d 928, 930-31 (Sur. Ct. 1998). Thus, the discovery rules that apply to will challenges, such as the 3-2 Rule, also apply to trust challenges. See, e.g., Matter of Will of Eckert, 60 Misc.3d 1007 (Sur. Ct. 2018) (applying the 3-2 Rule to a will and revocable trust dispute); In re Will of Brown, No. 2014-3597, 2015 WL 1801452, at *1 (Sur. Ct. 2015) (applying the 3-2 Rule to will and trust dispute where trust was executed proximately to the execution of the will).
The Cardellis' First Demand #13 and #16 and Second Demand #9 and #17 request the production of items beyond those related to Barnyard Bombers, LLC and, thus, require separate treatment.
As to First Demand #13 (i.e., records reflecting transfers, withdrawals or deposits from, to or between Decedent's Accounts, Decedent's Individual Account, the Trust Account and any other individual or entity), the definition section of the First Demand defines the accounts referenced by the Cardellis' demand. This demand is sufficiently particular and relevant. Accordingly, the Bairds' response is required, subject to the application of the 3-2 Rule. If any items have been provided already, the Bairds' response should identify what was previously produced and when. To the extent that any items do not exist, the Bairds should so affirm.
As to First Demand #16 (all photographs or other digital images, including but not limited to video or audio recordings), the demand is vague and overly broad and, thus, unenforceable, as it relates to those items "reflecting or concerning Decedent." The Bairds' response is required as to images or recordings of the Decedent's care, the defined Decedent's Accounts, Decedent's Individual Account, the Trust Account, the Purported Trust and the Power of Attorney to the extent that the responsive items fall within the 3-2 Rule time period. If any items have been provided already, the Bairds' response should identify what was previously produced and when. To the extent that any items do not exist, the Bairds should so affirm.
Second Demand #9 is duplicative of First Demand #13 and requires no response other than that.
Second Demand #17 is duplicative of First Demand #16 except for items concerning "the Farm," "the Health Care Proxy" and "APS/Department of Social Services/APS Determination." The Bairds' response is required to the extent that the responsive, non-duplicative items fall within the 3-2 Rule time period. If any items have been provided already, the Bairds' response should identify what was previously produced and when. To the extent that any items do not exist, the Bairds should so affirm. As with First Demand #16, Second Demand #17 is vague and overly broad and, thus, unenforceable, as it relates to those items "reflecting or concerning Decedent."
B. The motion for sanctions and/or attorney's fees.
The Cardellis have not demonstrated any form of willful and contumacious conduct or violation of prior court orders that would warrant either sanctions or an award of attorney's fees under CPLR § 3126, 22 NYCRR § 130-1.1 or the relevant case law.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that Objectants/Petitioners Mary Louise Baird Cardelli and Elizabeth Cardelli's motion to compel discovery responses pursuant to CPLR § 3124 is denied in-part and granted in-part as aforesaid; and it is further
ORDERED that Petitioners/Respondents W. Robert Baird, Allen Baird and Charles Baird shall respond to Objectants/Petitioners' First Demand #13 and #16 and Second Demand #9 and #17, as required by this Decision and Order, no later than 15 days from the date hereof; and it is further
ORDERED that Objectants/Petitioners Mary Louise Baird Cardelli and Elizabeth Cardelli's motion for sanctions and/or attorney's fees pursuant to CPLR § 3126 and/or 22 NYCRR § 130-1.1 is denied.
This constitutes the Decision and Order of the Court.