Surrogate GiganteESTATE OF WILMA CIRILLO A/K/A WILMA L. CIRILLO, Deceased (18/299/A) — In this contested probate proceeding, counsel for Joseph Cirillo (“Respondent”) filed a Notice of Motion on October 24, 2018 seeking the following relief:“(1) pursuant to CPLR 3124 compelling petitioner to produce demanded discovery;(2) extending JOSEPH CIRILLO’s time to file objections to 30 days after discovery responsive to the instant motion is supplied; and(3) granting such other and further relief that to this Court seems just and proper.”An Affirmation in Opposition was filed by counsel for petitioner on behalf of Mary Troianiello (“Petitioner”) on October 31, 2018 and oral argument was heard on October 31, 2018.
DISCUSSIONThe first part of the motion is limited to compelling the following discovery demands including:1. Documents containing the signature of the decedent (see, Demand 18 and 19 in Exhibit C of the Notice of Motion filed October 24, 2018);2. Any e-mails, correspondence or text messages concerning the filing of the Will (see, Demand 21 in Exhibit C of the Notice of Motion filed October 24, 2018);3. E-mails, correspondence or text messages concerning any letters received by Mary Troianiello from Raimond & Wong LLC concerning the instant estate (see, Demand 22 in Exhibit C of the Notice of Motion filed October 24, 2018);Upon review of the file, counsel for petitioner has provided copies of eight checks and various documents in response to Demand 18 and Demand 19 of the First Demand for Discovery and Inspection. Additionally, counsel for petitioner has offered via letter on October 3, 2018 to have the handwriting expert review originals of the documents at the office of counsel for petitioner (see, Exhibit F of Notice of Motion filed October 24, 2018). Subsequently, counsel for respondent has requested additional documents containing the signature. Counsel for petitioner opposes this further request.The documents being sought consist primarily of banking records for specific time frames, and accordingly should be readily recoverable from the financial institutions with appropriate subpoenas duces tecum. The real issue is who should prepare and serve the subpoenas. The Court would be remiss, however, if it did not observe, that the issuance of appropriate subpoenas, even if they had to be “So Ordered” by the Court, would have been easier, cheaper and more efficient that the filing of voluminous motions, answers and replies. Discovery is a well-worn path under Article 31 of the CPLR. Section 3120 allows for discovery and inspection of documents “which are in the possession, custody or control of the party or person served.” Petitioner’s answer makes it clear the documents are not in her possession. The banks are the custodians of the documents and have control over them. The scope and supervision of disclosure are matters within the sound discretion of the Court Borden v. Ellis Hosp, 67 AD2d 1038, 413 NYS2d 496. Accordingly, the Court directs the movant herein to prepare the necessary subpoenas for the missing bank statements and file them with the Court to be so ordered. If authorizations are required for other documents, the petitioner should promptly provide such authorization.The next issue to address is the demand by counsel for respondent for any e-mails, correspondence or text messages in Demand 21 and Demand 22 of the First Demand for Discovery and Inspection. Counsel for respondent argues that these documents are material and necessary as a result of the delay which was caused by petitioner in the filing of the Last Will and Testament for probate approximately eight months after the death of the decedent. Counsel for petitioner argues that the delay was caused by the petitioner caring for her terminally ill husband. Further, counsel for petitioner argues that Demand 21 and Demand 22 are overbroad and it may include privileged communications had with counsel. The Court finds that Demand 21 and Demand 22 are overly broad. The motion to compel discovery regarding Demand 21 and Demand 22 is denied without prejudice to revise such demands to a specific time period.In this probate proceeding, an examination of the subscribing witnesses, pursuant to SCPA 1404, was completed and the transcripts are to be filed with the Court. The Court directs that any objections to be filed in this proceeding must be filed with proof of service thereof no later than Friday, January 25, 2019. If no objections are filed and properly served by close of business on January 25, 2019, the proponent shall so notify the Court, in writing, and this proceeding will be referred to the Clerk’s office as an uncontested probate.The Court directs that this matter be restored to the Court’s calendar of Wednesday, January 30, 2019 at 9:30 a.m. for control.This decision shall constitute the Order of the Court. Dated: December 24, 2018
