Justice James Pagones
Objectants, decedent’s children, petitioned for an order precluding petitioner Helms, their stepmother, from testifying at trial for her failure to obey this court’s preliminary proceedings order. The petition also sought to disqualify Helms from serving as the executrix under decedent’s will. Objectants served a demand for production of documents and interrogatories after the parties completed a so-ordered discovery stipulation. Objectants’ counsel affirmed there was a “complete lack of compliance with the order.” The court noted as Helms failed to respond to this application alleging her non-compliance with the court’s prior discovery order, or her lack of fitness to serve as executrix, it could accept the allegations of fact as true under Surrogate’s Court Procedure Act §509. It found Helms’ failure to respond to objectants’ discovery demands for over one year and her lack of compliance with the court’s discovery order was the result of her willful and deliberate conduct. The court ruled an order precluding Helms from testifying at trial was an appropriate sanction under CPLR 3126(2). Also, objectants’ unchallenged allegations Helms was pillaging, wasting or improperly applying estate assets in advance of probate was sufficient to disqualify her from serving as executrix.
