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New York County, Surrogate's Court: August 13, 2018

New York County, Surrogate's Court: August 13, 2018

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Surrogate Anderson

ESTATE OF ERNST NEIZVESTNY, Deceased (17-910) — In this pre-objection stage of a proceeding to probate a copy of a will, proponent (decedent’s spouse) moves for a protective order prohibiting decedent’s daughter and her attorneys from making statements to the media in connection with information they obtain through discovery. The daughter opposes the motion and cross-moves for an order directing proponent to respond to her discovery demands. At the call of the calendar, the court denied the protective order, granted the cross-motion, and directed the parties to proceed with SCPA 1404 discovery forthwith.BackgroundDecedent was an artist of some renown, especially in his birthplace of Russia. His spouse offered for probate a copy of an instrument purporting to be his will, alleging that the original was destroyed in a fire. The instrument leaves his entire estate to his spouse, to the exclusion of his daughter.Proponent argues that decedent’s daughter and her attorneys have made false or misleading statements to Russian media outlets and that such disclosures may have a prejudicial effect in a jury trial. In addition, she argues that the sale of decedent’s artwork will be negatively impacted by such disclosures.Although a court has discretion to deny, limit, condition, or regulate the use of any disclosure device (CPLR §3103[a]), a court must be mindful of the serious First Amendment implications of such ruling. Here, a review of the record fails to disclose a necessity for prior restraints, and the imposition of a gag order would be, therefore, constitutionally impermissible (Rosenberg Diamond Dev. Corp v. Appel, 290 AD2d 239 [1st Dept. 2002]; Matter of Stern, NYLJ, May 11, 2015, at 22, col 1 [Sur Ct, NY County]). The court also takes note that proponent has other means of legal redress against a publisher of false information.Proceed accordingly.Dated: August 10, 2018

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