Beryl, Matter of
| Citation | 118 A.D.2d 705,499 N.Y.S.2d 980 |
| Parties | In the Matter of Louis BERYL, Deceased. Chemical Bank, et al., Appellants; Anthony P. Beryl, et al., Respondents. |
| Decision Date | 17 March 1986 |
| Court | New York Supreme Court Appellate Division |
White & Case, New York City (Burton T. Ryan and Alice R. Belair, of counsel), for appellant Chemical Bank.
L'Abbate & Balkan, Garden City (Anthony P. Colavita and William E. Betz, of counsel), for appellant Irwin P. Underweiser.
Friedman, Leeds, Shorenstein & Armenakis, New York City (Paul H. Appel, of counsel), for respondents.
Before BROWN, J.P., and WEINSTEIN, NIEHOFF and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for a judicial settlement of the account of the petitioners Irwin P. Underweiser and Chemical Bank as the surviving executors under the will of Louis Beryl, deceased, the petitioners appeal from an order of the Surrogate's Court, Nassau County (Radigan, S.), dated February 1, 1985, which denied their motions for a protective order striking the respondents' notices for discovery and inspection and granted the respondents' cross motion for an order compelling disclosure.
Order modified, by (1) deleting the first and second decretal paragraphs thereof, and substituting therefor provisions granting the petitioners' motion for a protective order to the extent that the petitioners are not required to disclose the documents requested in Item No. 1 specified in the notices for discovery and inspection and any other documents previously furnished to the respondents, and granting the respondents' cross motion for an order compelling disclosure with respect to Item Nos. 2, 3, 4 and 5 specified in the notices for discovery and inspection except for those documents which had previously been furnished by the petitioners, and (2) adding, prior to the words "addressed to Chemical" in the third decretal paragraph thereof, the words "as heretofore limited", and (3) adding, prior to the words "addressed to Underweiser" in the fourth decretal paragraph thereof, the words "as heretofore limited". As so modified, order affirmed, without costs or disbursements. The petitioners' time to comply with the notices for discovery and inspection, as heretofore limited, is extended until 30 days after service upon them of a copy of the order to be made hereon, with notice of entry.
In this proceeding, the respondents contend that the petitioners, as executors, are guilty, inter alia, of a conflict of interest. The respondents seek discovery of five categories of documents which they claim are needed to prove that the executors were motivated by either self-interest or the interest of an unrelated third party, to act in a manner adverse to the interest of the estate. The Surrogate properly acted within his discretion in permitting discovery of Items Nos. 2, 3, 4 and 5 as specified in the respondents' notices for discovery and inspection. However, in view of the fact that there has already been extensive discovery, he should have restricted discovery to those documents which had not previously been furnished by the petitioners (see, Matter of Markel v. Markel Elec. Prods., 73 A.D.2d 1052, 425 N.Y.S.2d 899). The disclosure provisions of the CPLR are to be liberally interpreted and applied (Allen v. Crowell-Collier Pub. Co., ...
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