Matter of Eleanor H. Swidow

Matter of Swidow 2004 NY Slip Op 09652 [13 AD3d 638] December 27, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

In the Matter of Estate of Eleanor H. Swidow, Deceased. Susan M. Henry, Appellant; Joseph Kachkowski, Respondent; Fleet Bank, Respondent.

—[*1]In a proceeding pursuant to SCPA 2103 to discover property allegedly withheld from a decedent's estate, the petitioner appeals from an order of the Surrogate's Court, Nassau County (Riordan, S.), dated August 19, 2003, which granted that branch of the motion of Fleet Bank which was for the imposition of costs pursuant to 22 NYCRR 130-1.1 (a) against the petitioner.

Ordered that the order is reversed, on the law, with costs payable by Fleet Bank, and that branch of the motion which was for the imposition of costs pursuant to 22 NYCRR 130-1.1 (a) against the petitioner is denied.

The Surrogate's Court improperly determined that the conduct of the petitioner's attorney in issuing and serving a subpoena duces tecum upon the respondent Fleet Bank was frivolous as that term is defined in 22 NYCRR 130-1.1. Contrary to Fleet Bank's contention, service of the subpoena was properly made by delivery of the subpoena upon Fleet Bank as opposed to its attorney (see CPLR 2303 [a]; 311). Accordingly, the imposition of costs was unwarranted (see 22 NYCRR 130-1.1; Hamilton v Cordero, 10 AD3d 702 [2004]; Matter of Gavilanes v Dilan, 281 AD2d 546 [2001]; Matter of Christopher, 280 AD2d 546 [2001]). [*2]Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.