Lukas' Estate, In re

• Decision Date: 02 October 1974
• Citation: 79 Misc.2d 24,360 N.Y.S.2d 549
• Parties: In re ESTATE of Stephen LUKAS, Deceased. Application of Patricia LUKAS, as Ancillary Executrix of the Estate of Stephen Lukas, Deceased, to Discover Property Withheld. Surrogate's Court, Westchester County
• Court: New York Surrogate Court

Page 549

360 N.Y.S.2d 549

79 Misc.2d 24

In re ESTATE of Stephen LUKAS, Deceased Application of Patricia LUKAS, as Ancillary Executrix of the Estate of Stephen Lukas, Deceased, to Discover Property Withheld.

Surrogate's Court, Westchester County.

Oct. 2, 1974.

Genzer, Sachs, Marcus & Reiss, New York City, for petitioner.

James A. McGough, New York City, for respondents.

DECISION

EVANS V. BREWSTER, Surrogate.

The motion by the respondents in this discovery proceeding, which is still in the inquisitorial stage, for an order compelling disclosure by the petitioner is denied for the reasons and on the authorities cited below.

The petitioner alleges essentially that cash which was deposited by the decedent with the respondents over a nine year period, as well as cash and other assets of the defendant which were transferred by respondents to others, in excess of the sum of $200,000 in value, should now be returned to the decedent's estate. In support of this allegation the petitioner claims to be in possession of certain documents and vouchers evidencing these deposits. The respondents filed a general denial and prior to being examined, have moved to compel the petitioner to produce the documents and vouchers for inspection, discovery and copying (CPLR 3120).

It is well known that in its inception a discovery proceeding is essentially inquisitorial and remains so until the petitioner has established a prima facie case for recovery of the property sought (Matter of Kevill, 166 Misc. 230, 2 N.Y.S.2d 191; 3 Warren's Heaton on Surrogates' Courts, Sec. 235). From that point forward, it becomes in the nature of an action for replevin (id.). If the answer served merely asserts a general denial of the allegations of the petition and does not allege title to or the right to possession of any property involved in the inquiry, as it the case here, then the proceeding continues just as though no answer were filed. The failure of the respondent to answer does not amount to a default, however--it is still necessary for the petitioner to prove her title to the property and right to possession of it (Sec. 236, Warren's Heaton (supra)).

Surrogate Wingate characterized the nature of the examination in this fashion: '. . . since the initial purpose of the examination in discovery is to elicit information upon which to found a demonstration for ultimate recovery of assets, it is, in itself, substantially an examination before trial for the eliciting of such facts as are requisite to enable the petitioner to sustain the burden of proof which rests upon him in the absence of an affirmative answer, of demonstrating his (the fiduciary's) ownership and right to immediate possession of anything within the knowledge or control of the respondent.' (Matter of Kevill (supra) P. 233, 2 N.Y.S.2d p. 195).

Viewing this initial inquisitorial phase as being akin to an examination before trial, it then logically follows that Rule 3120 of the CPLR permitting discovery and production of documents should be applied with the same restraint as in those cases involving the use of this device prior to an examination...