Opinion
File 2019-1954
09-21-2021
Probate Proceeding, Will of CARMEN F. LAMOURT, a/k/a CARMEN F. LAMOURT HERNANDEZ, Deceased. Dec. No. 38685
Erin B. Kowtna, Esq. Salem, Shor & Saperstein, LLP Attorneys for Petitioner Reena Gulati, Esq. Reena Gulati, PLLC Attorney for Objectants
Unpublished Opinion
Erin B. Kowtna, Esq. Salem, Shor & Saperstein, LLP Attorneys for Petitioner
Reena Gulati, Esq. Reena Gulati, PLLC Attorney for Objectants
PRESENT: HON. MARGARET C. REILLY
DECISION & ORDER
HON. MARGARET C. REILLY Judge
The following papers have been considered in the preparation of this decision:
Notice of Motion for a Protective Order............................ 1
Affirmation in Support of Motion with Exhibits..................... 2
Affirmation in Opposition to Motion with Exhibits.................. 3
Affidavits in Opposition to Motion (2)............................. 4
In this contested probate proceeding, Ralph P. Lamourt (petitioner) moves for a protective order, pursuant to CPLR 3103 (a), limiting, conditioning, or regulating the subpoenas served by Vivecca B. Lamourt and Yvonne M. Tracy (objectants). Objectants oppose the motion.
Carmen F. Lamourt, also known as Carmen F. Lamourt Hernandez (decedent), died on April 9, 2019, survived by three children: the petitioner and the objectants. Petitioner commenced a proceeding to probate an instrument dated June 14, 2016. The propounded instrument bequeaths the decedent's entire residuary estate to the petitioner, leaving the objectants nothing, and names the petitioner as the executor of the decedent's estate. Preliminary letters testamentary issued to the petitioner on May 23, 2019 and were extended by orders of this court dated August 11, 2020 and May 28, 2021.
Examinations were held pursuant to SCPA 1404. Thereafter, the objectants filed the following objections to the propounded instrument: that the instrument was not duly executed; that the decedent lacked testamentary capacity; that the instrument was procured by the undue influence and fraud of the petitioner; and that the petitioner is ineligible to serve as executor.
Objectants had moved for an order: dismissing the petition pursuant to CPLR 327 on the grounds of forum non conveniens and granting original probate in Puerto Rico; and/or declaring that the domicile of the decedent is Puerto Rico; and/or affirming that the law of the decedent's domicile applies to the decedent's will. In a decision and order, dated April 8, 2021 (Decision No. 37479), the court found that issues of fact were raised as to the decedent's domicile and scheduled a conference to set the matter down for a hearing, which is now scheduled for September 14, 2021.
Objectants served subpoenas duces tecum on the following nonparties to this proceeding: (1) Popular Bank; (2) New York State Department of Taxation and Finance; (3) JetBlue Airlines; (4) the Law Office of Anthony A. Capetola; (5) PSEG - Long Island; and (6) American Express. The subpoena to Popular Bank seeks records regarding any and all types of accounts either held individually or jointly by the decedent for the period from January 1, 2007 through the date of the bank's response. The subpoena to the New York State Department of Taxation and Finance seeks documents regarding the School Tax Relief (STAR) Program for the decedent and 237 West Penn Street, Long Beach, New York for the period from January 1, 2007 through the date of the Department's response. The subpoena to Jetblue Airlines seeks records regarding all airline tickets issued to the decedent traveling from New York or New Jersey to or from Rafael Hernandez International Airport in Aguadilla, Puerto Rico for the period from June 14, 2013 through April 9, 2019. The subpoena to the Law Office of Anthony A. Capetola seeks all documents referencing the decedent's address for the period from June 14, 2013 through April 9, 2019. The subpoena to PSEG - Long Island seeks records regarding service, payment and ownership of account provided by PSEG at the "subject property" (the subject property is not identified in the subpoena) for the period January 1, 2010 through the date of the response by PSEG. The subpoena to American Express seeks records regarding any and all types of accounts either held individually or jointly by the decedent for the period June 14, 2013 through April 9, 2019.
Objectant has presented a subpoena duces tecum to this court for signature which seeks similar documents from the New York State Department of Taxation and Finance for the period January 1, 1998 through April 9, 2019.
Petitioner moves for a protective order limiting, conditioning, or regulating the subpoenas in order to prevent unreasonable expense, disadvantage or other prejudice to the petitioner.
CPLR 3103 (a) provides that:
"The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
The applicable time period for discovery requests in probate proceedings is limited by 22 NYCRR 207.27, which provides that:
"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 rule is not limited to examinations before trial, but is applied to all discovery devices (Matter of Eckert, 60 Misc.3d 1007 [Sur Ct, Queens County 2018]). It is within the discretion of the court to determine whether to expand the time period set forth in the rule (Matter of Duzhansky, 153 A.D.3d 819 [2d Dept 2017]). Special circumstances warranting the expansion of the three year/two year rule have been deemed to include allegations of a scheme of fraud or a continuing course of conduct resulting in undue influence, which are evidenced by facts (Matter of Du Bray, 132 A.D.2d 914 [3d Dept 1987]).
Petitioner requests that the time period covered by each of the subpoenas duces tecum be limited to the three/two period. Objectants have failed to demonstrate a sufficient basis for their requests for documents more than three years prior to the date of the decedent's will. However, since the domicile of the decedent is in issue, the relevant time period for discovery is extended up until the decedent's date of death.
Accordingly, the petitioner's motion for a protective order is GRANTED to the extent that the time period for all of the document requests in the subpoenas duces tecum served by the objectants is limited to the period from June 14, 2013 through April 9, 2019. The subpoena served upon PSEG - Long Island is defective because it fails to specify the subject property for which records are requested.
This constitutes the decision and order of the court.