In re Bux, 2021-32652

CourtNew York Surrogate Court
Writing for the CourtNelida Malave-Gonzalez Judge
Decision Date07 December 2021
Docket Number2019-2267/A,2021-32652


No. 2021-32652

Docket No. 2019-2267/A

Surrogate's Court, Bronx County

December 7, 2021

Unpublished Opinion

Nelida Malave-Gonzalez Judge

In this contested probate proceeding, the proponent, the decedent's son Christopher, filed a motion seeking summary judgment dismissing the objections filed by another son, Joseph, Jr. (the objectant), on the grounds that he failed to comply with the "strict" discovery directed in a "so-ordered" stipulation dated September 29, 2020, and that there are no triable issues of fact. In addition to filing opposition to the proponent's summary judgment motion, the objectant also filed a cross motion seeking to dismiss the probate proceeding because of the proponent's alleged failure to respond to his discovery demands or schedule SCPA 1404 examinations. The objectant also seeks sanctions including counsel fees and disbursements. In the alternative, the objectant asks for a "tight" scheduling order and that the proponent be directed to pay the costs of the SCPA 1404 examinations. After both sons filed replies, the motions were marked "submitted for determination."


The decedent died on October 1, 2019 at age 72. His distributees are the two sons and an estranged spouse for whom a waiver and consent was filed. The decedent's will dated September 17, 2019 was executed less than two weeks prior to the decedent's death from cancer and was attorney supervised with a self-proving affidavit. The decedent's signature on the instrument is shaky. The instrument bequeaths a bread route owned by the decedent and associated equipment, three parcels of realty located in upstate, New York and the entire residuary estate to the proponent and specifically makes no provisions for the objectant and the estranged spouse. On the same date that the will was signed, the decedent executed a durable power of attorney in favor of the proponent and a separate document conferring authority for certain gift transactions. It is not known whether such gifting authority was exercised. He also executed a health care proxy appointing the proponent as agent on September 21, 2019. Preliminary letters testamentary issued to the proponent on November 27, 2019.

The objectant previously filed an administration petition, but no citation issued as the proponent had already filed the probate petition. On December 10, 2019, the return date of citation in the probate proceeding, an attorney appeared on behalf of the objectant and indicated that he intended to file objections to probate and seek discovery pursuant to SCPA 1404. New counsel for the proponent also appeared and advised the court that no discovery demands were served, the SCPA 1404 examinations were not


held and requested that the will be admitted to probate. The objectant's attorney then filed a consent for his former client to proceed pro se and the objectant indicated that he wished to retain new counsel.

Pursuant to decision and order dated August 27, 2020, the probate proceeding was stayed for a period of 30 days to enable the objectant to retain new counsel and a conference was directed. At the conference held on September 29, 2020, the objectant appeared pro se and two attorneys appeared for the proponent. The pro se objectant stipulated to a discovery schedule that was to be binding upon him whether or not he retained counsel or continued to proceed pro se. The stipulation, which was "so-ordered," provided, inter alia, that: the SCPA 1404 examinations were to be held on a virtual platform and completed no more than 90 days therefrom; objections, if any, were to be served and filed no more than ten days after completion of the SCPA 1404 examinations, and that the discovery schedule was to be strictly complied with, with no adjournments or postponements of the directed dates permitted without further order of the court. It additionally provided that failure to adhere to that discovery order might subject a party to sanctions, including inter alia, dismissing the probate petition or filed objections thereto, or the court's refusing to accept objections for filing.

At a compliance conference held on January 4, 2021 with a member of the court's Law Department, at which attorneys for both sons participated, new counsel for the objectant alleged that the SCPA 1404 examinations were not held because, inter alia, the proponent failed to


respond to his discovery demands or produce the attorney-draftsman and attesting witnesses. Counsel explained that he did not file objections because the estate would normally pay for the cost of pre-objection SCPA examinations (SCPA 1404 [5]), and he believed the court-ordered outside filing date to be 10 days after the SCPA 1404 examinations were completed. As the examinations were not yet held and the proponent refused to consent to an extension of time, counsel served and filed objections consisting of two typewritten pages asserting, inter alia, lack of due execution and testamentary capacity, that the instrument was procured by fraud, undue influence, duress and the decedent did not understand its terms. The objections with annexed affidavit of service dated January 4, 2021 were filed with the court on January 5, 2021. Although the proponent asserts that the filing does not comport with the September 29, 2020 discovery order, as a predicate, the court finds that they were timely served and filed.

In support of the summary judgment motion, the proponent states that on December 29, 2019, the objectant appeared with former counsel and indicated that he intended to file objections on the original return date of citation. Many months ensued and despite two court orders, he failed to do so. The proponent avers that the delay was purposeful and caused the estate to incur additional legal fees. It was not until November 5, 2020 that new counsel for the objectant served a document demand and request for HIPPA authorizations pursuant to SCPA 1404. Although the proponent's attorney timely served responses on November 6, 2020, the


objectant's new attorney still failed to schedule and conduct SCPA 1404 examinations or subpoena, if necessary, the drafting attorney and attesting witnesses within the time frame mandated by the September 29, 2020 scheduling order. As the drafting attorney and witnesses are not employed or under the control of the proponent, counsel urges that there is no duty to produce these third party witnesses and the objectant, whether proceeding pro se or represented by two different attorneys, failed to schedule the SCPA 1404 examinations to date. The proponent concludes that the objectant should be precluded from seeking additional discovery and the will should be admitted to probate.

In opposition to the summary judgment motion, the objectant filed a cross motion seeking to compel the proponent to respond to outstanding discovery demands and hold the SCPA 1404 examinations at the estate's expense. His attorney alleges that the proponent's responses to the demands were inadequate, none of the attorney-drafter's documents were produced and he received only minimal financial documents. Among the documents that were produced was a power of attorney executed on the same day as the will in favor of the proponent. Counsel opines that the proponent, as agent utilizing a power of attorney, had a confidential relationship with the decedent that he failed to disclose in the probate petition and has the burden to prove that the decedent was not subject to undue influence at the time of the will's execution.

Counsel continues that the proponent intentionally failed to


produce a copy of a deed dated August 9, 2007...

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