Attorney for Petitioners: Barry K. Honigman, Esq.
Attorney for Objectant: Damianos Markou, Esq. Moritt, Hock
& Hamroff LLP.
J. Kelly, S. Judge.
probate proceeding, objectant moves for an order striking
that part of petitioners' demand for a bill of
particulars which seeks particulars on the issues of due
execution and testamentary capacity, expanding the scope of
discovery beyond the time period set forth in the Uniform
Rules for the Surrogate's Court (22 NYCRR § 207.27),
directing petitioners to provide a response to
objectant's discovery demands, and for sanctions and
died on January 23, 2016 survived by three children, the
petitioners Theodore and Philip, and the objectant Patricia.
Offered for probate is an instrument dated April 10, 2003
wherein decedent bequeaths her interest in a certain
corporation to her three children equally and leaves the
residuary estate only to petitioners.
were filed after SCPA § 1404 examinations of the
attorney draftsperson and one witness. Although examinations
before trial of the parties were scheduled at the preliminary
conference, they have not been conducted since objectant
claims she has not received certain financial records and
signed HIPPA authorizations from petitioners. Likewise,
petitioners claim that objectant has failed to provide a
response to their demand for a verified bill of particulars.
probate proceedings, demands for bills of particulars and
responses are governed by CPLR § 3041 and § 3042,
as well as the Uniform Rules for Surrogate's Courts, 22
NYCRR § 207.23. The latter section provides that when
objections to probate are made on the grounds of fraud or
undue influence, the proponent is entitled to a verified bill
of particulars setting forth particular, itemized
information. A proponent, however, may not demand a bill of
particulars with respect to issues that it has the burden of
proof on, namely due execution and testamentary capacity
(see e.g. Estate of Cascardo, NYLJ, Aug. 28, 2009 at
34, col 1 [Sur Ct, Richmond County]). In this case,
petitioners have erroneously demanded a bill of particulars
concerning the issues of due execution and testamentary
the branch of the motion to strike that part of
petitioners' demand seeking a bill of particulars on the
issues of due execution and testamentary capacity is granted.
petitioners also appropriately seek particulars concerning
the issues of undue influence and fraud. Objectant argues
that, to the extent a bill of particulars is required on
these issues, it need not be provided until after the
depositions of the parties and the completion of discovery,
citing Matter of Reynolds, 38 A.D.2d 788');">38 A.D.2d 788 [4th Dept.
1972]), a probate proceeding which held that a showing of
special circumstances must be made to obtain a bill of
particulars prior to completion of examinations before trial.
That case, however, predates the effective date of 22 NYCRR
§ 207.23 [ eff. January 6, 1986] which
expressly provides that "the proponent shall be entitled
as of course" to the bill of particulars. Should further
information be obtained, objectant may amend the bill of
particulars "once as of course prior to the filing of a
note of issue" (CPLR § 3042 [b]).
objectant is directed to provide petitioners with a verified
bill of particulars setting forth the information required by
22 NYCRR § 207.23 concerning the allegations of fraud
and undue influence within her knowledge, within twenty (20)
days from the date of this decision and order.
next seeks to expand discovery in this case beyond the time
period set forth in the applicable Uniform Rules for the
Surrogate's Court, which confines discovery to the three
year period prior to the date of the propounded instrument
and two years thereafter (or date of death if earlier),
except upon a showing of special circumstances (22 NYCRR
§ 207.27; see Estate of Armen Manoogian, NYLJ,
Feb. 28, 2014 at 22, col 5 [Sur Ct, New York County];
Estate of Giardina, NYLJ, June 15, 1999 at 32, col 4
[Sur Ct, Nassau County]). This limitation of the time period
for which discovery can be obtained is a pragmatic rule
designed to prevent the costs and burdens of a "runaway
inquisition" (Estate of Das, 2009 NY Misc.
LEXIS 2411 [Sur Ct, Nassau County]). The determination
whether to expand the scope of discovery is within the
discretion of the court (see e.g. Matter of
Constant, 128 A.D.3d 419');">128 A.D.3d 419 [1st Dept. 2015]).
argues that special circumstances exist because the
proponents have engaged in a scheme of fraudulent conduct and
continuing course of undue influence. When special
circumstances are based upon this allegation they must be
evidenced by the facts (see Matter of Partridge, 141
Misc.2d 159 [Sur Ct, Rockland County 1988] ; Estate of
Sabin, 2015 NYLJ Lexis 5846 [Sur Ct, Suffolk County];
Estate of Levey, 2015 NYLJ LEXIS 5845 [Sur Ct,
support, the objectant submits a letter from decedent's
treating doctor stating that decedent was diagnosed with
dementia on October 19, 2000. Prior thereto, decedent had
created an irrevocable trust in or about December, 1999 which
granted all three of her children an equal interest in the
trust income and residuary. Decedent thereafter gave both
proponents a power of attorney in 2006 that they allegedly
used to transfer $250, 000.00 to themselves prior to
decedent's death in 2016. In addition, the documentary
evidence shows that decedent executed a deed transferring a
parcel of real property to the proponents in May, 2000, which
is near in time to both the establishment of the trust and
the diagnosis of dementia.
facts and circumstances surrounding the transactions between
decedent and the petitioners that occurred both before and
after the purported will was executed demonstrate a change in
decedent's 1999 testamentary plan, and arguably, a
potential course of conduct which could bear on the question
whether undue influence existed (see generally e.g.
Matter of Carpenter, 252 AD 885 [2nd Dept. 1931;
Will of Griffith, 48 Misc.2d 1048, 1049 [Sur Ct,
Erie County 1966]). ...