Surrogate CzygierESTATE OF STEPHEN F. BOLLENBACH A/K/A STEPHEN BOLLENBACH, Deceased (16/4036/C) — Before the court are dispositive motions and motions for a protective order filed by certain parties to these proceedings. The motions will be determined in separate decisions of even date.The instant motion is brought by counsel for respondents herein (Christopher and Keat Bollenbach) for an order, dismissing the instant discovery proceeding, and for relief pursuant to CPLR 3103 and CPLR 2304 for a protective order quashing certain subpoenas duces tecum and related relief.The moving respondents assert that the proceeding is moot and that they should have a protective order, not only suppressing any material already delivered pursuant to the subject subpoenas, but also directing petitioner to destroy same.Background and ArgumentsCaptioned decedent died on October 8, 2016, survived by his spouse (petitioner) and two adult children (respondents). After the devise of certain residences and their contents to petitioner, the propounded instrument leaves the residue of the estate to a living trust which was executed the same day as the will. Petitioner is the duly appointed fiduciary of captioned decedent’s estate and has been acting as successor trustee of the trust. It is also relevant that the decedent and his former spouse (“Barbara”) entered into a Separation Agreement, which was incorporated into their 2010 (California) Judgment of Divorce, which provided for an allocation of their assets post-divorce, In the petition commencing the instant proceeding, petitioner alleges that the financial records sought are necessary due to respondents’……continued failure and refusal to provide information within their custody and control. Such information is essential for petitioner to be able to timely file federal and New York estate tax returns and to pay taxes due thereon. (Haynes Petition, p.1, 2)According to respondents, they delivered 13,000 to 15,000 documents to the petitioner in June, 2017, satisfying the demands in the petition, which was filed at the end of May, 2017. Further, since the stated goal of the proceeding was to obtain information to allow petitioner to file the estate’s tax returns, and the returns were purportedly filed in January, 2018, the relief sought is now moot1. It is their argument that the petitioner is trying to work around the stay on discovery imposed by the aforementioned dispositive motions sub judice in the related proceedings involving these litigants and other claimants. Respondents also argue that they are entitled to a protective order concerning any documents petitioner may have already received, since a number of those records relate to accounts held solely by Barbara Bollenbach, decedent’s ex-spouse and party to the 2010 Agreement/Judgment.Petitioner opposes the motion, maintaining that, as fiduciary, she is entitled to collect as much information concerning the decedent’s assets as possible, not just to pay the estate taxes, but also to properly administer the estate. She also maintains that respondents, who were involved in most, if not all, of the decedent’s financial and business affairs, have not been forthcoming. Counsel for petitioner argues that the thousands of documents provided are incomplete, and that petitioner is willing to streamline the subpoenas served, if they are deemed objectionable (i.e. seeking records from years before the decedent’s death). In reply, respondents reiterate their assertion that they have provided the documents sought and that petitioner is already in possession of the assets generating the large majority of the estate taxes. Respondents also ask the court to impose a protective order on any documents delivered pursuant to the referenced subpoenas, noting that UBS accounts ending in 7490, 5358, 7487, 5353 and Morgan Stanley accounts ending in 8008A and 0711 are accounts in the sole name of Barbara Bollenbach or those that were allocated to her under the terms of the 2010 Agreement/Judgment. DiscussionGiven the undeniable stated purpose of this proceeding, to collect financial information necessary for the fiduciary to file estate tax returns, and the subsequent filing of a proceeding to compel the payment of those taxes from certain accounts (File #2016-4036/S), the court agrees that this proceeding is now moot. With respect to the demand for relief pursuant to CPLR 3103 and CPLR 2304, the court is compelled to note that petitioner herself has seemingly acknowledged that the subpoenas served were, at best, overly broad and susceptible to modification. This is further supported by an attempted filing of a subsequent proceeding, pursuant to SCPA 2103, which the court declined to entertain (Matter of Bollenbach, 3/23/2018, S. Czygier, File #2016-4036/N). As a general rule, the standard for quashing a subpoena duces tecum is whether the requested information is “utterly irrelevant to any proper inquiry” (In re MacLeman, 9 Misc.3d 1119(A), citing Anheuser-Busch, Inc. v. Abrams, 71 NY2d 327, 331-332; Ayuba v. Eastman Kodak Co., Inc., 158 AD2d 641, 642, citations omitted; In re Estate of Rutherford, 26 Misc3d 1235(A); see also In re Will of Soluri, 40 Misc3d 1207(A)). Upon the court’s determination concerning the status of this underlying proceeding, the relief requested concerning the previously served subpoenas may also be considered moot. It is noted however that, under CPLR 3103, the court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device in any case where the material sought is palpably improper or overly broad (see Ural v. Encompass Ins. Co. of America, 158 AD3d 845). Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts (CPLR 3103[a]). Further, the court is also empowered to suppress any information improperly obtained so that a substantial right of a party is not prejudiced (CPLR 3103[c]).Certainly, petitioner fails to adequately justify the acquisition of Barbara Bollenbach’s account information, and any documents concerning same should, at this juncture, be suppressed and destroyed. While the remaining documents obtained may be the result of an overly expansive subpoena, the court is not troubled by a fiduciary having in her possession the decedent’s financial information, as germane to administering said decedent’s estate.ConclusionAccordingly, it isORDERED that, the underlying petition brought pursuant to SCPA 2103 is denied as moot; and it is furtherORDERED that, the fiduciary is directed to immediately destroy any documentation acquired by such fiduciary pursuant to subpoenas or document demands served in the context of this proceeding which include account records or account information concerning accounts and related matter solely owned by Barbara Bollenbach.
1. The court notes that a separate proceeding was filed by these respondents in June, 2018 for an order/decree directing the fiduciary to pay the federal estate estate taxes from certain accounts (File #2016-4036/S) The fiduciary, as of this writing, has until August 7, 2018 to file an answer in such proceeding.
