In re Eckert

• Decision Date: 05 July 2018
• Docket Number: 2016–3279/A
• Parties: In the MATTER OF the Probate Proceeding, WILL OF Bernhard ECKERT, Deceased.
• Court: New York Surrogate Court

60 Misc.3d 1007
80 N.Y.S.3d 873

In the MATTER OF the Probate Proceeding, WILL OF Bernhard ECKERT, Deceased.

2016–3279/A

Surrogate's Court, Queens County, New York

Decided July 5, 2018

80 N.Y.S.3d 875

Attorney for proponent Susan Eckert–Barsz: Loretta M. Gastwirth, Esq., Meltzer, Lippe, Goldstein & Breitstone, LLP, 190 Willis Avenue, Mineola, NY 11501, 516–747–0300

Attorney for objectants Edward Eckert and Robert Eckert: Frank T. Santoro, Esq., Farrell Fritz, P.C., 400 RXR Plaza, Uniondale, NY 11556, 516–227–0700

Attorney for respondent surviving spouse Victoria Eckert: Arthur N. Terranova, Esq., 90–35 148 Street, Jamaica, NY 11435, 718–291–4503

Peter J. Kelly, J.

In this contested probate proceeding, petitioner Susan Eckert–Barsz (Susan) moves for an order (1) compelling objectants Edward Eckert (Edward) and Robert Eckert (Robert) to produce all documents responsive to her notice for discovery and inspection dated November 29, 2017; (2) extending the discovery period beyond the 3–2 rule provided in 22 NYCRR 207.27 ; (3) compelling the objectants to comply with her demand for a bill of particulars dated August 28, 2017; and (4) extending the deadlines for

80 N.Y.S.3d 876

the taking of depositions and the completion of discovery. The objectants oppose items (1), (2) and (3) of the motion, and cross move for an order compelling petitioner to produce the estate planning documents of respondent Victoria Eckert (Victoria).¹

The papers considered on these motions are the Notice of Motion and all the papers annexed; the Memorandum in Support of the motion; the Notice of Cross Motion and all the papers annexed; and the Reply in support of the motion and in opposition to the cross motion. While these motions were sub judice, the parties sent supplemental papers to the court, which were not requested. These post-submission papers have not been considered by the court.

The decedent died on July 2, 2015, at the age of 89 years, survived by his spouse and three children. The instrument sought to be probated as the decedent's will is dated June 3, 2014. It is subscribed by two witnesses and the attorney-draftsperson, and a self proving affidavit is annexed. Except for tangible property, the instrument provides for the remainder of the estate to pour over to a revocable trust which was created the same day as the instrument. The instrument further provides that any reference therein to the terms "my child" or "my children" shall specifically include the decedent's daughter Susan, but shall not include his sons Robert or Edward "because of their lack of affection." The instrument also contains an in terrorem clause.

The revocable trust provides for the trust property to be paid upon the decedent's death to his spouse, Victoria. In the event Victoria does not survive the decedent, the trust provides, inter alia, that the decedent's sons Robert and Edward each receive a 50% share of the decedent's stock and ownership interest in a realty corporation, and a payment of $1,000.00 to each. A grandson is given the decedent's interest in another corporation, and the balance of the trust property is payable to the decedent's daughter Susan. If, however, Victoria or the fiduciary of her estate disclaims all or part of the disposition to her, so much of the disposition disclaimed shall be held in trust, with the net income, or so much of the principle as the trustees determine, paid to Victoria. Upon Victoria's death the "disclaimed" trust property is to be distributed in the manner as if she had predeceased.

Robert and Edward interposed objections to the probate of the instrument. The objections include allegations of undue influence and fraud exercised by Susan.

On August 28, 2017, petitioner served objectants with a demand for a bill of particulars. A preliminary conference was held with the court on October 30, 2017, at which petitioner and objectants entered into a discovery stipulation setting forth various dates for the production of a bill of particulars, the service of discovery demands, and the taking of party and non-party depositions. Pursuant to the stipulation, objectants served a bill of particulars dated November 10, 2017. Thereafter, petitioner served her discovery notice, to which objectants served a response dated December 23, 2017.

Petitioner's notice for discovery consists of twenty-four pages, five of which include definitions and instructions, and the balance thereof containing 119 individually numbered requests for the production of documents. Of those 119 numbered requests, 116 of them commence with the

80 N.Y.S.3d 877

word "all." Most of the numbered requests employ the phrase "all documents evidencing, referring or relating to." Many of the numbered requests seek documents dating back more than thirty years. Some requests are not restricted to any time frame at all.

Broadly these demands fall into 24 categories ranging from arguably relevant communications to such picayune items as greeting cards, and from personal records to virtually every document related to the decedent's purported business interests.

Objectants' response to petitioner's discovery notice is fifty-four pages in length. In addition to interposing general objections to the entire document demand, objectants provide responses to each individual request. Some of the requests are objected to on the grounds of lack of specificity, vagueness, or irrelevance; others on the grounds that they are over broad, unduly burdensome, meant to harass, or palpably improper. In addition to those grounds, the majority of the requests are objected to as seeking documents outside the scope of the "3–2 rule" provided in the Uniform Rules for Surrogate's Court ( 22 NYCRR 207.27 ). Despite their across the board objections to the requests, the objectants nevertheless indicated that they would endeavor to provide some of the requested documents, at least within the parameters of the "3–2" rule.

CPLR 3101[a] provides that in civil actions there shall be full disclosure of all evidence "material and necessary." Although the words "material and necessary" are to be liberally construed, the test, nonetheless, is usefulness and reason ( Allen v. Crowell–Collier Publishing Co. , 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ). The need for discovery must also be weighed against the burden to the opposing party ( Kavanagh v. Ogden Allied Maintenance Corp. , 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 ). Disclosure demands which are overbroad, burdensome, lack specificity, seek irrelevant information, or are otherwise improper, will be denied to the extent warranted (see Astudillo v. Ft. Francis–Beacon Extended Care Facility, Inc., 12 A.D.3d 469, 470, 784 N.Y.S.2d 645 ; Lopez v. Huntington Autohaus, Ltd. , 150 A.D.2d 351, 352, 540 N.Y.S.2d 874 ).

In deciding issues related to disclosure, the court has "broad power to regulate discovery to prevent abuse" ( Barouh Eaton Allen Corp. v. International Bus. Machs. Corp. , 76 A.D.2d 873, 874, 429 N.Y.S.2d 33 ). Furthermore, the supervision of disclosure and the setting of reasonable terms and conditions rests within the sound discretion of the court and, absent an improvident exercise of that discretion, its determination will not be disturbed ( Mattocks v. White Motor Corp. , 258 A.D.2d 628, 629, 685 N.Y.S.2d 764 ).

Given the breadth of the...