Objectant, Doris Stein, has filed a Motion seeking a Protective Order pursuant to CPLR 3103, and an Order to Quash the Notice to Take her Deposition upon Oral Examination, dated September 20, 2019. Petitioner filed an Affirmation in Opposition, dated October 21, 2019, and Objectant filed her Reply Affirmation, dated October 25, 2019. The motion was argued on October 30, 2019. The interested parties were given an opportunity to resolve the motion independently after argument. On November 15, 2019, this Court was notified by email that the parties were unable to do so. Accordingly, the motion was marked fully submitted. Under Article 31 of the CPLR, the scope of discovery available is broad. The primary limitation is found in CPLR §3101 (a), where the examination of a party is “of all matter material and necessary in the prosecution or defense of an action.” (emphasis added) SCPA §1404(4) specifically allows examinations”…as to all relevant matters which may be the basis of objections to the probate of the propounded instrument.” Objectant is foremost a party to the proceeding, as an objecting intestate distributee. The objections filed by Objectant addressed issues, inter alia, of testamentary capacity, fraud, undue influence, and due execution on the October 28, 2009 will of the decedent. Her examination is contemplated by §3101. Objectant argues that despite her status, she does not possess information material and necessary to the proceeding, in that she previously acknowledged her lack of a relationship with decedent in over fifty years, including a lack of information regarding the execution of decedent’s will. As such, she argues that under §3103(a) of the CPLR this Court may “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.” Objectant further contends that an examination would be an undue hardship in that she is a 93-year-old person currently residing in an assisted living facility in California, with cognitive impairment. To that end, Objectant does not provide a sworn medical affidavit or other evidence of such a medical diagnosis. Instead, her California physician’s statement is not affirmed and not admissible independently. The Court’s file does contain the May 1, 2019 report of the guardian ad litem, Catherine Paulo, Esq. (the “GAL”). The GAL who spoke with her ward, Doris Siegel Stein. Ms. Paulo noted that the Objectant confirmed that she and the Frank brothers were cousins. She was otherwise unable to provide information concerning any extended family on the paternal side. Ms. Paulo also spoke to Mark Glickman, son of the Objectant, who informed her that Objectant had dementia and currently resided in an assisted living facility. This report, in addition to Objectant’s physician’s statement, does provide this Court with some admissible evidence of her physical and mental condition. The confirmation of her residence in an assisted living facility lends a reasonable and rational inference of hardship from which this Court can take Judicial Notice. Moreover, the minimal information provided to the GAL demonstrates that it is most unlikely that Objectant’s examination will provide any sort of relevant information in this proceeding. Nonetheless, the lack of available information from Objectant is not enough to quash the examination, nor does her alleged cognitive impairment alone. Petitioner is entitled to examine Objectant in this proceeding pursuant to Article 31, to assess her credibility and seek additional information possibly not requested by the GAL, even if the information gained is deemed minimal. That being said, enough evidence was provided to the Court to allow it to modify the location and means by which the examination is taken. Objectant’s physical condition may cause travel to New York for the examination to be unduly burdensome or result in unnecessary hardship, yet, not enough to dispense with the examination. Drews v. Spencer, 274 App Div 802, 79 NYS 2d 626 (2nd Dept. 1948). Objectant further seeks to limit the inquiry under NYCRR 207.27. Such a limitation would limit the inquiry to three years prior to the drafting of the will and two years after, thus, October 28, 2006 to October 28, 2011. Barring a special circumstance, it is alleged that Objectant would have no information within that time frame to provide about decedent, since it is alleged she had not spoken to decedent in fifty years. This section of NYCRR restricts the availability of discovery and the broadening of the time frame is within the discretion of the court. In re Duzhansky, 153 A.D. 3d 819, 57 NYS 3d 905 (2nd Dept 2017). Petitioner argues that a special circumstance exists that would allow the line of inquiry to expand beyond the 3-2 time frame, citing In re Martin. 2003 NY Slip OP 50609 (U) (Surr. Ct. Nassau 2003) and Matter of Kaufman. 11 A.D. 2 d 759, 202 NYS 2d 423 (1st Dept 1960). Petitioner claims that the lack of a relationship between decedent and Objectant is material and necessary as to why decedent did not include Objectant in his will dated October 28, 2009 or any of his two previous wills. However, the scope of inquiry in this proceeding is limited to the objections regarding the execution of the 2009 will, and Objectant does not deny that the lack of a relationship with decedent. In Martin, the requested extension of NYCRR 207.27 related to questioning in a probate proceeding where undue influence was alleged. Essentially, it was argued that a hostile relationship between the decedent and Bessemer, whose representative was being examined, led to the undue influence. This matter is distinguishable from this proceeding, since, herein it is alleged that there was no relationship between decedent and Objectant in approximately fifty years. However, in Kaufman, it was alleged that there was an eleven-year relationship between testator and the proponent prior to the execution of the will, who was unrelated by blood to testator, whose examination was requested. As such, special circumstances were demonstrated and the examination expanded beyond the rule of NYCRR 207.27. Likewise, in the within proceeding, the relationship is between decedent and Objectant is broader than the rule. Furthermore, it appears that the Objectant is a frail woman of advanced age with cognitive impairment living across the continent, and as such, the ability to examine her diminishes with each passing day. Thus, in the interest of judicial economy and practicality, the rule of NYCRR 207.27 must be expanded. Therefore, the limitation of NYCRR 207.27 does not apply. Matter of Kaufman. supra. It is then hereby, ORDERED, that Objectant’s motion is granted to the extent that the examination of Objectant Doris Stein shall be held in California at a location geographically near her facility, or if agreed to by the parties, by electronic means, or interrogatories, on or before February 14, 2020; and it is further ORDERED, that Objectant’s examination is not limited by NYCRR 207.27, and it is further ORDERED, that Objectant’s motion is otherwise denied, and it is further ORDERED, that the proceeding shall be calendared for February 26, 2020 at 9:30 AM. This decision shall constitute the order of the court. Dated: January 13, 2020
