In re Estate of Frizziola

• Decision Date: 21 August 2019
• Docket Number: File No. 2017-98/C
• Citation: 2019 NY Slip Op 32944 (U)
• Court: New York Surrogate Court
• Parties: In the Matter of the Estate of ANTHONY FRIZZIOLA, a/k/a ANTHONY G. FRIZZIOLA, SR. Deceased.

2019 NY Slip Op 32944(U)

In the Matter of the Estate of ANTHONY FRIZZIOLA,
a/k/a ANTHONY G. FRIZZIOLA, SR. Deceased.

File No. 2017-98/C

SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND

August 21, 2019

Petitioner moved to adjourn the SCPA 1404 examinations of the attorney-draftsman and the witness to the will, and to hold the same by electronic means. By stipulation dated March 6, 2019, the SCPA 1404 examinations were agreed to be held on May 6 and 7, 2019.

When attempting to schedule the examinations, petitioner confirmed that Matthew Dickson, Esq., the attorney-draftsman, currently resides in Colorado, yet maintains a practice in New York. Petitioner also confirmed that the witness to the will, William S. Graebe, currently resides in Naples, Florida, with no remaining business or personal connection to New York.

Petitioner contacted both deponents and both are willing to be examined for this proceeding by electronic means but have not consented to voluntarily appearing in New York for examinations.

In her attorney's affirmation, petitioner affirmed that Dickson maintains a busy law practice in Colorado and has small children; therefore, according to petitioner, travel to New York for a deposition would be an undue hardship. In his affirmation, Dickson affirms that he is married with three children, high school age and younger, residing in Evergreen, Colorado. He also attested to the drafting of the will and pour over trust of Anthony G.

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Frizziola, Sr. Dickson affirms that travel to New York would be a "tremendous burden and expense" and would yield no more information than what was presented in his affirmation.

Petitioner also confirmed that Graebe is currently over seventy years of age and residing in Naples, Florida, with no known current connection to New York.

Respondent has opposed the motion, alleging that the evidence adduced does not meet the threshold of "undue hardship." As for Graebe, a non-party and witness to the will, respondent argues that the only undue hardship alleged is age and geographic distance. Dickson, a resident of Colorado is however, a registered member of the New York Bar and as such, is subject to the jurisdiction of this state and this Court.

I. Examinations by Electronic Means

CPLR 3113 (d) provides that "[t]he parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically." A unilateral request for a deposition by electronic means will only be granted where an "undue hardship" is created by holding the deposition in the jurisdiction where the action is pending. In re Estate of Singh, 22 Misc 3d 288, 289 (Sur Ct, Bronx 2008). The party requesting the deposition by electronic means must submit evidence, such as an affirmation from the deponent, proving the existence of undue hardship. A showing of mere inconvenience is not enough. Id.

In Singh, the Surrogate found that sufficient evidence was presented to show undue hardship that the deponent, and petitioner, was unable to obtain a visa to travel from India to the United States for his deposition. Id. In contrast, In the Matter of Arum, (42 Misc 3d 1224[A], 2013 NY Slip Op 52295[U], *1 [Sur Ct, Nassau 2013]), the Surrogate denied the motion that sought a deposition by remote means. In Arum, the objectant claimed that her

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residence in Canada and poor health prevented her from traveling to the jurisdiction. Id. The Surrogate found that without an...