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In re Cavallo

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 6, 2009

IN THE MATTER OF GREGORY CAVALLO, A/K/A GREGORY M. CAVALLO, DECEASED; REBECCA PYTOSH, APPELLANT; MARIE CAVALLO, ET AL., RESPONDENTS. (FILE NO. P133/01B)

In a contested probate proceeding, the proponent of the will appeals from (1) an order of the Surrogate's Court, Richmond County (Gigante, S.), dated June 4, 2008, and (2) a resettled order of the same court dated June 25, 2008, which granted the objectants' motion for a protective order and to quash certain subpoenas.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., RANDALL T. ENG, ARIEL E. BELEN & L. PRISCILLA HALL, JJ.

DECISION & ORDER

ORDERED that the appeal from the order is dismissed, as that order was superseded by the resettled order; and it is further,

ORDERED that the resettled order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents, payable by the appellant personally.

"A party seeking discovery from a nonparty witness must show special circumstances" (Tannenbaum v Tenenbaum, 8 AD3d 360, 360; see Lanzello v Lakritz, 287 AD2d 601). Here, the appellant failed to establish special circumstances to justify her demand for nonparty disclosure, "since she failed to demonstrate that the information sought was otherwise unobtainable" (Schwarz v Schwarz, 227 AD2d 611, 612; see Tannenbaum v Tenenbaum, 8 AD3d at 360; Matter of Validation Review Assoc. [Berkun-Schimel], 237 AD2d 614, 615). Accordingly, the Surrogate's Court properly granted the objectants' motion for a protective order and to quash certain subpoenas.

DILLON, J.P., ENG, BELEN and HALL, JJ., concur.

20091006

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