In this contested accounting proceeding, the co-executor, the decedent’s son, moves, inter alia, to preclude the co-executor, the decedent’s daughter, from filing objections to his accounting, from filing a judicial accounting and from conducting any discovery in any accounting proceeding. The daughter opposes the motion. The daughter also makes a separate application for an order for attendance and examination against the son pursuant to SCPA 2103.On June 29, 2017 the court ordered both parties to file an interim accounting. Thereafter, a conference was held on January 16, 2018 before a court attorney-referee. At that time the parties entered into a stipulation whereby the son was to file an amended accounting on or before February 15, 2018 and the daughter was to file her seperate accounting on or before March 15, 2018 causing citation to issue returnable on April 10, 2018; the return date of son’s citation. At the return date of the son’s citation, the son’s amended accounting had been filed timely, however the daughter’s accounting had not been filed, nor had she caused citation to issue pursuant to the January 16, 2018 stipulation. After a conference, the parties entered into another stipulation on the record in open court, whereby the court acknowledged that the son had complied with the terms of the January stipulation, and the daughter had not. At that time, the court “so-ordered” the daughter to file her account no later than April 30, 2018 and cause a citation to issue with a May 2018 return date. The daughter’s account was ultimately filed, and a citation issued on June 26, 2018.The son now seeks to preclude the daughter from filing her accounting, submitting objections to his accounting or conducting any discovery in any accounting proceedings due to her alleged intentional failure to comply with discovery and delay the proceedings. A review of the record indicates the son complied with the stipulation of January 16, 2018 as the court acknowledged on the record on April 10, 2018. The son asserts that as the daughter’s accounting has a filing date of June 26, 2018, she was in default of the “so-ordered” stipulation of April 10, 2018 and therefore her accounting should be precluded. The son further contends that the ongoing nature of the litigation, coupled with the breach of the January 16, 2018 stipulation and the perceived default of the “so-ordered” direction by the court of April 10, 2018, as well as the daughter’s habitual recalcitrance throughout the proceedings, amounts to a wilful or contumacious pattern of behavior under CPLR 3126 and therefore the daughter’s pleadings and participation in the present action should be precluded.In opposition, counsel for the daughter contends the actual filing of the account was timely pursuant to the court’s ordered direction of April 10, 2018. Counsel explains that on April 30, 2018 a traffic condition prevented his traveling to the court, however the filing of the daughter’s accounting was the next day: May 1, 2018. A copy of the accounting date-stamped by the accounting department “May 1, 2018″ was included in the daughter’s opposition papers. Counsel for the daughter contends that revisions were later requested by the accounting department before a citation could issue, and he annexes a copy of an email to counsel for the son dated May 11, 2018 with a status update as to said request from the accounting department. Counsel for the daughter also annexes a copy of his proposed changes to the accounting which were date stamped “filed” by the accounting department on June 7, 2018. Finally, counsel notes that he received another phone call from the accounting department requesting additional changes which were submitted at the time the citation was issued, to wit, June 26, 2018. Based on the foregoing, counsel for the daughter contends that the filing of the accounting should be deemed timely.For reasons set forth below, the additional issues and allegations discussed in the opposition papers are not addressed herein.The son lists several other allegations against the daughter regarding delay tactics, misappropriations and actions taken against the estate as a dereliction of her fiduciary duty and reason for her removal. Those issues were reserved for the accounting proceedings pursuant to an order of the court dated June 7, 2017. The issue presently before the court is solely whether the actions taken by the daughter with regard to the production of discovery and the alleged untimely filing of the accounting warrant a preclusion of any or all of her pleadings and/or her participation in further discovery.Courts have the inherent discretionary authority to relieve parties of their failure to comply with “so ordered” stipulations (see Teitelbaum Holdings Ltd v. Gold (48 NY2d 51 [1979]). To be relieved, the defaulting party must move either by motion in the proceeding, or in an appropriate circumstance, by plenary action (Teitelbaum Holdings Ltd v. Gold 48 NY2d at 55 [1979]). “‘Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. *** and all such stipulations not unreasonable, not against good morals or sound public policy, have been and will be enforced.” (see Tepper v. Tannenbaum, 83 AD2d 541 [1st Dept 1981] quoting Matter of New York, Lackawanna and Western R.R. (249 App Div 764 [2nd Dept 1936]).The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court. The striking of a pleading, a harsh measure, may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is wilful and contumacious. (see Flynn v. City of New York, 101 AD3d 803 [2nd Dept 2012]).In the instant motion, the son has failed to show that the perceived non-compliance with the court’s April 10, 2018 “so-ordered” stipulation was wilful and contumacious. Counsel for the daughter submitted proof of stamped filings in the accounting department that the accounting was merely one day late, and demonstrated reasonable excuse for the delay between that filing and the issuance of the citation by his timely attempts to correct the accounting and his notification to opposing counsel as to the status of those corrections. The court does not see prejudice to the son based on this de minimus delay. Further, when weighed against the prejudice to the daughter in precluding her pleadings and participation in the proceedings, such action by the court would be unduly harsh.The daughter has also made an application to the court for an order for attendance and examination pursuant to SCPA 2103 against the son under an “E” sub-filing. In a decision dated June 7, 2017 this court made clear that applications for relief of that nature, as well as the request contained in the within motion for attorneys fees, and the allegations of both co-executors against one another for dereliction of fiduciary duty, shall be renewed within an accounting proceeding, and not entertained herein.On the state of the record, this decision constitutes the order of the court denying the son’s motion, inter alia, to preclude daughter’s accounting, objections and participation in discovery within the accounting proceedings. The daughter’s request for an order of attendance and examination, and the additional relief sought is denied without prejudice to renewal in the accounting proceedings.The Chief Clerk is directed to mail a copy of this decision and order to respective counsel.Proceed accordingly.
