Opinion
November 6, 1975
Appeal from the Onondaga County Surrogate's Court.
Present — Moule, J.P., Simons, Mahoney, Goldman and Witmer, JJ:
Order unanimously modified in accordance with memorandum and, as modified, affirmed, with costs, to appellant. Memorandum: In this proceeding petitioner-appellant claims that he was in the testator's employ for 30 years prior to the latter's death, that he has a claim to "All the assets, documents, records and proceeds of, or relating to the investment account of petitioner in the hands of decedent or under his control at the time of his death, or thereafter coming into possession or control of the Fiduciary, including 2312 shares of Cities Service Company stock", and other assets. On February 11, 1974 the nominated executor of testator's will, Merchants National Bank and Trust Company of Syracuse (Merchants), having been appointed preliminary executor of testator's will (SCPA 1412) pending a will contest in which petitioner herein is one of the contestants, noticed an examination before trial of petitioner with respect to his claim. Under the same date, but undeniably served later, petitioner noticed an examination before trial of Merchants, as such executor, with respect to "the investment account of petitioner and money and property of petitioner in the hands of the decedent or under his control at the time of his death * * * and all prior events leading up to and relating thereto", and for the production by Merchants of "all papers" and "evidences of assets of any form" in the hands of Merchants "whether held by him in his individual, fiduciary or any other capacity". Petitioner then made a motion for an order for the examination of Merchants before trial and for its production of the documents specified in the above notice, and he asked that such examination before trial be scheduled before Merchants' examination before trial of him. The Surrogate granted the motion in part, but restricted it to papers and writings "pertaining to investment and or banking records and income tax records of the decedent whether in his individual fiduciary or any other capacity, and limited to a period of time which shall not exceed six years prior to the date of decedent's death"; and the Surrogate held that such examination must follow Merchants' examination before trial of petitioner. Petitioner appeals from that order. Surrogates' Courts disclosure proceedings are governed by article 31 of the CPLR (CPLR 408). Since Merchants first noticed its examination before trial, the court properly granted it priority of examination (CPLR 3106). This is especially so in this case where petitioner's allegation of his fiduciary relationship with the testator and his right to estate assets are so sparse (see Alderman v Eagle, 41 A.D.2d 641). A party is entitled to disclosure only insofar as the items sought are material, that is, relevant and useful with respect to the issue involved (Matter of Schneier, 50 A.D.2d 715). Petitioner makes no showing that other records than those specified by the Surrogate should be produced for inspection, and the order was properly restricted in this respect. Despite the paucity of petitioner's showing, the Surrogate granted the examination before trial and the discovery of specified documents, but limited it to six years preceding testator's death. Since testator acknowledged in his will that petitioner had long been in his employ, it appears that on the basis of the claim herein petitioner has the right to examine Merchants and such specified documents for the entire period. The order should be modified, therefore, to extend the period of examination to the length of time that petitioner was in testator's employ, approximately 30 years. Such examination, however, shall be deferred until after the conclusion of the probate proceedings, after which it should promptly proceed.