Opinion
No. 368793.
2013-01-17
In the Matter of Probate Proceeding, ESTATE OF Meyer YAGODA, Deceased.
Sharon Kovacs Gruer, Esq., Great Neck, Law Offices of Beth Polner Abrahams, Carle Place, for Petitioner, Robert Pines. Cole, Schotz, Meisel, Forman & Leonard, P.A., New York City, for interested party, Scott Yagoda.
Sharon Kovacs Gruer, Esq., Great Neck, Law Offices of Beth Polner Abrahams, Carle Place, for Petitioner, Robert Pines. Cole, Schotz, Meisel, Forman & Leonard, P.A., New York City, for interested party, Scott Yagoda.
EDWARD W. McCARTY III, J.
In this probate proceeding, decedent's nephew Scott Yagoda, a distributee and potential objectant [“Scott”], moves for an order pursuant to CPLR 3124 compelling Robert Pines, decedent's nephew the petitioner/executor and residuary legatee under the proffered will [“Robert”], to produce the documents demanded in Scott's Demand for Discovery and Inspection, directing Robert to execute medical authorizations, and for the imposition of monetary sanctions. The motion is decided as set forth herein.
The decedent, Meyer Yagoda, died on December 11, 2011 survived by two nephews [Robert and Scott] and a niece. He was 95 years of age. Robert had lived in the same house as decedent for Robert's entire life. He avers decedent was like a father to him and although it is not entirely clear as to precisely when, Robert further states that as his uncle's condition deteriorated, he undertook to caring for him and seeing to his affairs. Robert does not controvert the statements by Scott in his moving affidavit that in 2003 decedent granted Robert two powers of attorney which gave him substantial access to decedent's financial affairs and that Robert and decedent had shared business interests in a number of enterprises.
Robert has filed a petition to probate the last will and testament of the decedent dated November 3, 2005. Meyer Yagoda had executed four prior wills for the period from November of 1997 to June of 2005.
Interestingly, in urging irrelevance of financial affairs in his opposition affidavit [¶ 20] Robert makes reference to “gifts or transfers” sans any specifics or even identification of grantor/grantee.
On the initial return date of the citation, Scott appeared by counsel and SCPA 1404 examinations were requested and scheduled. Same were adjourned and are now on hold by reason of the issues raised in this application.
Scott's counsel served a Demand for Discovery and Examination (sic) dated July 3, 2012 containing 43 separate items. Robert's attorney transmitted a letter dated July 19th which, except for five of the demands, very generically took issue with the remaining 38. A formal response to the demand and what Scott characterized as a partial document production, however, was not forthcoming until August 12th. The demands seek documentation commencing with the year 1997 and concluding with the date of decedent's death and moreover seeks financial documents.
Disclosure in New York civil actions is guided by the principle of “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101[a] ). The words “material and necessary” are “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406 [1968] [internal quotation marks omitted]; see Tower Ins. Co. of N.Y. v. Murello, 68 AD3d 977 [2d Dept 2009] ). The Court of Appeals' interpretation of “material and necessary” in Allen has been understood “to mean nothing more or less than relevant' “ (Connors, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR C3101:5).
Given the 14–year breadth of the demand, clearly of import here is the applicability of the three-year/two-year rule under 22 NYCRR 207.27. The rule reads in relevant part: “In any contested probate proceeding in which objections to probate are made * * * *. [Emphasis supplied.] Except upon the showing of special circumstances, the examination will be confined to [three years prior to the date of the will and two years thereafter or to the date of death which ever is shorter] * * * * ”. At bar that time frame would be November 3, 2002 to November 3, 2007.
The court rejects Scotts' argument based upon Fiddle v. Estate of Fiddle (13 Misc.3d 827 [Sur Ct, Sulivan County 2006] ) that 22 NYCRR 207.27 has no applicability here because objections have not yet been filed. The weight of authority is that the three-year/two-year rule applies regardless of whether objections have or have not yet been filed ( see Matter of Ettinger, 7 Misc.3d 316 [Sur Ct, Nassau County 2005] ).
The issue here is thus framed as to whether and to what extent special circumstances have been established to warrant departure from the three-year/two-year rule.
This court has explored the special circumstances requirement and has observed:
The three/two year rule is a pragmatic rule designed to prevent the costs and burdens of “runaway inquisition” ( Matter of Nigro, NYLJ, Oct. 5, 2004, at 20, col 1 [Sur Ct, Nassau County]; Matter of Flynn, NYLJ, Apr. 22, 1986, at 13, col 2 [Sur Ct, Nassau County]. The time period is not rigid and may be extended when special circumstances exist (Matter of Kaufman, 11 A.D.2d 759 [1st Dept 1960] ). Allegations of a scheme of fraud or a continuing course of conduct of undue influence may be sufficient to constitute special circumstances (Matter of Carpenter, 252 AD 885 [2d Dept 1931]; Matter of Chambers, NYLJ, Nov. 2, 2001, at 21, col 5 [Sur Ct, Suffolk County]; see also Matter of Partridge, 141 Misc.2d 159 [Sur Ct, Richmond County 1988] [court extended three/two year rule based upon allegations that the housekeeper/proponent began a course of conduct to exert fraud and undue influence beginning with the date he was hired and continuing to the execution of the purported will]; Matter of Martin, 2003 N.Y. Slip Op 50609[U]; 2003 WL 1088227 [Sur Ct, Nassau County 2003] [court found that alleged “hostility” between the bank and decedent was relevant to the question of undue influence and ordered the trust officer to respond to questions regarding the alleged hostile relationship] ).
( Matter of Das, 2009 Misc. LEXIS 2411 [Sur Ct, Nassau County 2009.]
There is no sparsity of allegations in the papers submitted here. Indeed both Robert and Scott explore their factual claims and the inferences to be drawn therefrom in such depth it is as if this was a motion for summary judgment. Further, while there are reasonable allegations of undue influence there isn't a shred of facts or allegations on this record to warrant departure from the three-year/two-year rule. It is of import to note the powers of attorney were executed months after the beginning of three years prior to the execution of the will.
Accordingly, this branch of the motion is denied.
The HIPPA authorizations issue is said at least ostensibly to derive in part from the dispute over the three-year/two-year rule but appears to the court as much to have been a product of a lack of cooperation either between the clients and/or the lawyers. Within two weeks from the date hereof, Scott is directed to supply Robert with HIPPA-compliant authorizations for signature and within two weeks thereafter, Robert is directed to execute same and cause them to be returned to Scott. The temporal scope of same shall be from November 3, 2002 to November 3, 2007.
The application for the imposition of sanctions has no merit and is denied.
This constitutes the decision and order of this court.