Opinion
No. 388–A/2006.
2010-09-15
In the MATTER OF the Estate of Anna PLACIDO, Deceased.
Phillips & Millman, LLP, (Frank J. Phillips, Esq., of Counsel) for Ann Barbie Rivera, administratrix. Richard R. Schmidt, Esq., for Hugo Placido, husband-objectant.
Phillips & Millman, LLP, (Frank J. Phillips, Esq., of Counsel) for Ann Barbie Rivera, administratrix. Richard R. Schmidt, Esq., for Hugo Placido, husband-objectant.
LEE L. HOLZMAN, J.
In this proceeding in which the administratrix, the decedent's daughter, seeks to disqualify the decedent's spouse from sharing in the settlement proceeds of a wrongful death action, the administratrix moves for an order directing the pretrial examination of the spouse, notwithstanding that she filed a note of issue, certificate of readiness and statement of issues on March 1, 2010.
Previously, this court granted in part a motion by the spouse to compel a pretrial examination of the administratrix and other discovery, and so much of a cross motion by the administratrix as sought an expedited hearing on the issue of abandonment (see Matter of Placido, NYLJ, Apr. 20, 2010, at 25, col 1). The court's decision on those applications resulted in an order directing the parties to appear for a June 24, 2010 pretrial deposition of the administratrix on the issue of abandonment, followed by a June 28, 2010 pretrial conference.
Prior to her court-ordered deposition and the pretrial conference, on June 1, 2010, the administratrix wrote the court and all parties requesting an adjournment of the June 28, 2010 pretrial conference so that she could examine the objecting spouse on July 21, 2010. In a responding letter, the spouse refused to consent to his pretrial examination or any adjournment of the pretrial conference as the administratrix had indicated her readiness for trial by filing a note of issue, certificate of readiness and statement of issues. On the June 28, 2010 pretrial conference date, the administratrix filed the instant motion seeking to compel the spouse to appear for a pretrial deposition. Thereupon, the court directed the filing of opposition and a reply to the motion by certain dates.
In support of her motion, the administratrix notes that her court-ordered deposition occurred on June 24, 2010, after the filing of the note of issue, and in the interest of fairness, an examination of the spouse should be ordered as he has information relating to the abandonment issue. In opposition, the spouse contends that where a party seeks to continue discovery after the filing of the note of issue, unusual or unanticipated circumstances must be demonstrated, and the administratrix failed to meet that burden. In support, he notes that his objections and discovery demands were served and filed in November, 2009, he moved to compel discovery from the administratrix prior to the filing of the note of issue in March, 2010, the administratrix never sought to examine him until her pretrial examination was ordered, and the affirmation of her attorney in the certificate of readiness, to the effect that neither party intended to seek discovery, was inaccurate.
Except where specifically superseded by the SCPA, the CPLR applies to proceedings in Surrogate's Court (see SCPA 102; Mirvish v. Mott, 75 AD3d 269 [2010];see also Matter of Poldrugovaz, 50 AD3d 117 [2008];Matter of Poster, 25 Misc.3d 780 [2009] ). Here, the SCPA and the Uniform Rules for Surrogate's Court (see e.g. 22 NYCRR 207.29, 207.30, 207.31) are silent with respect to allowing continued discovery after the filing of a note of issue. Nonetheless, CPLR 3401 provides that rules adopted by the chief administrator of the courts which regulate, inter alia, the filing of notes of issue “shall be uniform” within the city of New York, insofar as practicable (CPLR 3401). As this court is located within the city of New York, the Uniform Rules for Trial Courts (22 NYCRR) apply to continued discovery after the filing of the note of issue (see CPLR 3401).
Generally, pursuant to 22 NYCRR 202.21(e) of the Uniform Rules for Trial Courts, any party to an action may, within twenty (20) days of service of a note of issue and certificate of readiness, move to vacate them upon an affidavit showing in what respects the case is not trial ready (see 22 NYCRR 202.21[e]; Mangano v. Mantell, 2009 N.Y. Slip Op 32754[U] [2009] ). Where a timely motion is not made to vacate the note of issue, no such motion may be made except for good cause shown (see Spano v. Omni Eng'g, LLC, 28 Misc.3d 1201[A], 2009 N.Y. Slip Op 52773[U] [2009], affd69 AD3d 922 [2010] ). Pursuant to 22 NYCRR 202.21(d), a court may permit additional discovery, post-note of issue, where “unusual or unanticipated circumstances develop subsequent to the filing of the note of issue ... which require additional pretrial proceedings to prevent substantial prejudice” (22 NYCRR 202.21[d]; see also Spano, 2009 N.Y. Slip Op 52773[U]; Mangano, 2009 N.Y. Slip Op 32754[U] ).
Here, the spouse never timely moved to strike the note of issue and certificate of readiness, even though they were filed prematurely without compliance with his discovery demands. Although the administratrix never sought to depose the spouse prior to her own court-ordered deposition, she did not know that she would be deposed until after she filed the note of issue as her examination occurred post-note of issue, and an examination of the spouse clearly is material, relevant and necessary to the issue of his alleged abandonment of the decedent (see CPLR 3101). Under these unusual circumstances, and to prevent substantial prejudice (see 22 NYCRR 202.21 [d] ), a deposition of the spouse shall be conducted prior to trial of the abandonment issue (see Torres v. New York City Transit Auth., 192 A.D.2d 400 [1993];see also Sun Plaza Enters. Corp. v. Crown Theatres, LP, 307 A.D.2d 352 [2003];Spano, 2009 N.Y. Slip Op 52773[U]; Matter of Adamo, 16 Misc.3d 800 [2007] ).
Accordingly, the motion is granted. The administratrix shall settle an order directing the examination before trial of the spouse at a date, on or before October 29, 2010, time and place agreeable to the parties, and calendaring the matter for a pretrial conference on November 15, 2010 at 9:30 a.m. Absent agreement by the parties as to the date, time and place for the examination of the spouse, the court shall make the selection for them in the order to be settled hereon.
Settle order.