Matter of MacLeman

[*1] Matter of MacLeman 2005 NY Slip Op 51675(U) [9 Misc 3d 1119(A)] Decided on July 14, 2005 Surrogate's Court, Westchester County Scarpino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2005
Surrogate's Court, Westchester County

Probate Proceeding, Estate of ALEXANDER MacLEMAN, Deceased.



1634/04



GEORGE J. LAMBERT

Public Administrator - West. County

140 Grand Street - 9th Floor

White Plains, New York 10601

GARY E. BASHIAN, ESQ.

BASHIAN & FARBER, LLP

Attorneys for Karen MacLeman Morgese

235 Main Street

White Plains, New York 10601

DEBORAH Y. McCARTHY, ESQ.

McCARTHY FINGAR, et al.. LLP

Attorneys for John MacLeman

11 Martine Avenue -12th Floor

White Plains, New York 10606

FRANK D. DIKRANIS, ESQ.

Attorney for William MacLeman

1009 West Beech Street

Long Beach, New York 11561

RUSS JELLINEK, ESQ.

SCHUMAN SALL & GEIST, ESQS.

Attorneys for Public Administrator

One North Lexington Avenue - 11th Floor

White Plains, New York 10601

Anthony A. Scarpino, J.

Before the court is a contested probate proceeding in the estate of Alexander

MacLeman ("decedent"). Karen MacLeman Morgese ("Karen"), one of decedent's three children and a nominated co-executor under an instrument executed on April 3, 2001 ("instrument"), has offered that instrument for probate. Karen's two siblings, John MacLeman ("John"), a nominated co-executor under the instrument, and William MacLeman ("William"), have each filed objections to probate. [FN1]

Karen has moved to quash or modify, pursuant to CPLR 2304, subpoenas duces tecum seeking document disclosure from four non-parties, and to obtain a protective order, pursuant to CPLR 3103(2), "denying, limiting, conditioning or regulating" the foregoing subpoenas duces tecum, as well as notices to take depositions served upon two of the aforementioned four non-parties.

John, joined by William, opposes the motion, and John has cross-moved to obtain an order: (i) allowing an additional examination of the attorney/draftsperson of the propounded instrument; (ii) directing Karen to produce certain documents John has requested from her in his First Notice for Discovery and Inspection ("First D&I Notice"); and (iii) direct the Public Administrator of Westchester County ("Public Administrator"), the estate's temporary administrator, to issue authorizations compliant with the Federal Health Insurance Portability and Accountability Act ("HIPPA"), permitting John's counsel to either meet with or conduct oral interviews with decedent's treating physicians and other medical professionals who provided medical services and advice to decedent.

The motion and cross-motion are determined, as set forth, infra. [*2]

Factual Background

Decedent died on December 10, 2003, at age 91, a resident of an assisted living facility in Ossining, Westchester County. He was survived by his three children, Karen, John and William. Pursuant to the instrument, decedent, inter alia: (i) devised real property located in Amagansett, Suffolk County to Karen; (ii) bequeathed $50,000 to William to equalize certain loans he had made to the other children, which were forgiven in the instrument; and (iii) bequeathed his personal property and residuary estate to all three children, in equal shares. Also, Article FOURTH of the instrument contains a provision by which decedent declared that certain assets - particularly checking accounts, savings accounts and certificates of deposit - which he held jointly with any of his children at the time of his death were to pass under the instrument as estate assets, not to the surviving joint tenant of such assets.

The instrument was prepared by decedent's long-time attorney Terrence M. Higgins ("Higgins"), who supervised the execution ceremony. Higgins and his long-time office assistant, Alison Burns ("Burns") served as the two attesting witnesses to the execution. The instrument contains an attestation clause, and Higgins and Burns executed a self-proving affidavit at the time of execution. [FN2]

Procedural Background

In June 2004, John filed applications with the court to: (i) obtain temporary letters of administration and deny probate to the instrument, on the grounds set forth in his objections to probate ("temporary letters proceeding"); and (ii) obtain limited letters of administration to commence a discovery proceeding (SCPA 2103) against Karen ("limited letters proceeding"). The latter application was grounded in allegations that Karen had improperly transferred over $300,000.00 in bank accounts and certificates of deposit from decedent's name to "in trust for" accounts for her own benefit and accounts she and decedent held jointly at the time of his death. He also alleged that Karen had significant control over decedent's finances from before the time the instrument was executed, up to and beyond the date of decedent's death.[FN3] He further alleged that the instrument departed from decedent's testamentary plan, as set forth in wills he had previously executed in 1991 and 1998, under which decedent's assets were divided equally among his three children. Karen countered by commencing the instant proceeding, at which time her application to obtain preliminary letters testamentary was challenged by John and William.

By written stipulation "so ordered" by the court on October 12, 2004 ("October 2004 Stipulation"), the parties' resolved the two proceedings commenced by John by agreeing to [*3]the appointment of the Public Administrator as the estate's temporary administrator. [FN4] As to the continuation of disclosure in the instant proceeding, Paragraph (3)(c) of the October 2004 Stipulation provides: "The scope of disclosure under [22 NYCRR] 207.27 of the Rules of the Surrogate's Court shall be expanded to a period of five years prior to the date of the April 3, 2001 [instrument] through the date of death. Thus the period would be April 3, 1996 through December 10, 2003. This expansion is granted without prejudice to an application for a further expansion based upon an adequate showing of special circumstances."

On February 2, 2005, the court executed an order pursuant to which, inter alia, deadlines for the service of demands and responses for disclosure were established ("February 2005 Order"). Pursuant to that order, the parties agreed to conduct all examinations (parties and non-parties) at this court's facilities. [FN5]

Pertinent Disclosure Demands

In late February 2005, John served the following pertinent disclosure demands: (1) subpoenas duces tecum upon Higgins, Citibank, N.A. ("Citibank"), where Karen has personal bank accounts, John Morgese, Karen's spouse ("Morgese"), and John Jordan, Jr., decedent's long-time accountant ("Jordan"); (2) notices for depositions upon Higgins and Jordan, both of whom have their business offices in Garden City, Nassau County; and (3) a First D&I Notice upon Karen. Thereafter, several conferences occurred, at which the parties expressed numerous concerns with certain of the foregoing disclosure demands and subpoenas. Despite the parties' good faith efforts, the disputed issues were not resolved, resulting in the instant motions.

The Motion

Karen has raised the following challenges to the disputed subpoenas duces tecum and notices for examination:

Subpoenas - All: Karen contends that: (i) the documents sought by John are not relevant to the probate proceeding, but are more appropriately sought in a discovery proceeding pursuant to CPLR 2103; and (ii) John has failed to establish sufficient "extraordinary [*4]circumstances" to extend the stipulated time period pertaining to disclosure (i.e., April 3, 1996 through December 10, 2003) to permit the production of documents through January 1, 2005, as requested;

Subpoena - Citibank: Karen contends that, as to Paragraph No. 3, John has failed to establish sufficient grounds to request records and documents attendant to Karen's personal banking transactions;

Subpoena - Higgins: Karen contends that certain of the documents requested from Higgins are protected from disclosure by the attorney-client privilege; and

Notices for Depositions: Karen contends that: (i) Higgins should be excused from an additional examination, since the issues which John seeks to question him about are pertinent to a discovery proceeding rather than a probate proceeding; and (ii) both Jordan and Higgins should be excused from compliance because the examinations were not properly noticed to occur in Nassau County, in violation of CPLR 3110(2).

In response, John initially contends, as to the subpoenas duces tecum, that Karen's motion for a protective order is an inappropriate remedy, and that she lacks standing to move to quash any of the four disputed subpoenas. He also contends that: (i) as to the Morgese subpoena, Morgese's partial compliance renders any challenge moot; (ii) as to the Higgins subpoena, the attorney-client privilege asserted is subject to waiver. Finally, he contends that the documents sought are relevant to the issues of whether Karen exercised undue influence and/or fraud over decedent both prior to and subsequent to his execution of the instrument.

The Cross-Motion

John contends that an additional examination of Higgins is warranted, due to his first-hand knowledge of critical transactions and conversations which occurred subsequent to decedent's death pertaining to the nature and value of decedent's assets before and at the time of his death, as well as Higgins' awareness of Karen's knowledge about that information. He also contends that Karen should produce all documents requested in the First D&I Notice, as those documents relate to whether Karen exercised undue control over decedent's finances both prior to and subsequent to decedent's execution of the instrument. Finally, he contends that the Public Administrator should provide him with HIPPA-compliant authorizations to conduct "informal" interviews with decedent's physicians, so as not to incur significant expenses in conducting examinations and other formal disclosure.

In response, Karen contends: (i) no additional examination of Higgins is warranted, since the additional information sought is outside the scope of this proceeding; (ii) she stands by the responses she has already made to John's First D & I Notice; and (iii) the request to conduct informal interviews of decedent's physicians should be denied, since the law currently provides for such interviews only after the filing of a note of issue, when all formal disclosure is certified to be completed.

Applicable Law and Conclusions

The Motion

1. Propriety of Remedies - Motion to Quash / Motion for Protective Order

Generally, the test for disclosure under CPLR 3101 is whether the information sought is "material and necessary". This test is one of relevance, usefulness and reason (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406). As to abuses of disclosure, in addition to this [*5]court's broad inherent power to regulate disclosure (see CPLR 3101; Matter of Tracy, NYLJ, Jan. 28, 1998, at 30, col. 5), a person served with a notice or a subpoena attendant to disclosure may move either to obtain a protective order (CPLR 3103), or to quash or modify the subpoena (CPLR 2304) (Matter of Tracy, supra; see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2304:1, at 274-275 [1991]).

At least one New York court has held that, even though subpoenas technically operate outside of disclosure, a protective order may be an appropriate means to limit or deny information sought from a third party (see e.g. People v Weiss, 176 Misc 2d 496). In this regard, an application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious, or where the information sought is utterly irrelevant to any proper inquiry (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332 [citations omitted]). Also, CPLR 3103(a) provides that a protective order may be issued to prevent "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." In determining whether a protective order should be issued, the general preference for allowing discovery must be balanced against the objecting party's prerogative to be free of unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice (see Matter of Ettinger, 7 Misc 3d 316; Matter of Martin, 2 Misc 3d 1008[A]; Hartheimer v Clipper, 288 AD2d 263 [and other cases cited]; Matter of Brignola v Pei-Fei Lee, M.D., P.C., 192 AD2d 1008).

The motion to quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a party's lawyer (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2304:1, at 274-275 [1991], supra). As to motions for a protective order, CPLR 3103(a) not only permits a non-party witness to seek such an order in his/her own right, but also permits any party opposing the disclosure to make the motion on behalf of the non-party (see Siegel, NY Prac § 353, at 577 [4th ed]).

Pursuant to the foregoing authorities, the court hereby rejects John's contentions that the motion to quash is the exclusive remedy to prevent compliance with the disputed subpoenas duces tecum, and that Karen lacks standing to challenge the validity or terms of any of the disputed disclosure devices.

2. Scope of Disclosure

It is settled that the scope of disclosure in contested probate proceedings is broad and permits inquiry into all relevant matters which may be the basis of an objection to the probate of will, including: a decedent's testamentary capacity, his/her freedom from restraint, the authenticity of the instrument itself, and its due execution (SCPA 1404[4]; see Matter of DeLisle, 149 AD2d 793; Matter of Powers, NYLJ, Aug. 24, 2001, at 23, col. 1). Ordinarily, disclosure is limited to a "three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent's death, whichever is the shorter period" (Uniform Rules for Surrogate's Court [22 NYCRR] 207.27). However, where a party is able to show "special circumstances" (i.e., allegations, supported with facts, of a scheme of fraud or a continuing course of conduct of undue influence), the stated time period for disclosure under the so-called "three year - two year" rule is subject to extension (22 NYCRR 207.27; Matter of Chambers, NYLJ, Nov. 2, 2001, at 21, col. 5). [*6]As to examinations of attesting witnesses and/or an attorney/draftsmen, pursuant to SCPA 1404, it is clear that such examinations are broad in scope, and that the examining party is entitled to only one examination (see SCPA 1404[4]; Matter of Ettinger, supra). Permission from the court to reexamine the attesting witnesses or attorney/draftsman is not lightly given (SCPA 1404[4]; see Matter of Roth, 7 Misc 3d 1010[A]; Matter of Ettinger, supra [and cases cited therein]). As to document production in contested probate proceedings, among those items discoverable are documents which contain information as to: (i) a proponent's knowledge of decedent's assets prior to the will execution; (ii) the value of decedent's estate; (iii) whether decedent divested himself of assets in the years prior to his death; and (iv) any financial records of decedent or a proponent which might reveal information of this nature (Matter of DuBray, 132 AD2d 914; Matter of Fox, 100 AD2d 744; Matter of Schneier, 50 AD2d 715). Moreover, all transactions, financial and otherwise, between a decedent and a party alleged to have exerted domination over him are materials subject to inquiry where undue influence has been charged (Matter of Silverman, 91 Misc 2d 125; Matter of Kortchmar, NYLJ, Jan. 31, 1992, at 29, col 2; see generally, Matter of Diresta, NYLJ, Nov. 19, 2000, at 31, col. 3).

Initially, the court notes that the time frame for the scope of disclosure in the instant proceeding is governed by Paragraph 3(c) of the October 2004 Stipulation (i.e., April 3, 1996 through December 10, 2003), since the parties agreed to extend the "three year - two year" rule on their own volition, "without prejudice to an application for a further expansion based upon an adequate showing of special circumstances". Also, the court will deem the instant motion and cross motion to comprise John's "application for a further expansion" of the stipulated time frame for disclosure.

Subpoenas Duces Tecum

The court has thoroughly reviewed all of the disputed subpoenas duces tecum, and the relevant affidavits and affirmations supporting and opposing the motion. In light of the foregoing authorities, the court concludes that John has demonstrated sufficient "special circumstances" to warrant expansion of the ending date in the stipulated time frame attendant to all four disputed subpoenas, from December 10, 2003 to January 1, 2005. [FN6] In doing so, the court credits John's allegations that Higgins, Jordan, and Karen engaged in certain meetings, conversations and transactions subsequent to decedent's death which raise factual issues as to the value of decedent's assets before and/or at his death. Moreover, since Karen was in a "confidential relationship" with decedent by virtue of the powers of attorney decedent executed in her favor (see Matter of Schilling, NYLJ, May 1, 1995, at 33, col 3), John's factual allegations about Karen's handling of decedent's funds during the applicable time periods arguably give rise to an inference that Karen exercised undue influence over decedent (see Delafield v Parish, 25 NY 9; Matter of Brush, 1 AD2d 625). In short, all of the foregoing circumstances warrant an expansion of the stipulated time frame for disclosure, to the period requested (see e.g. Matter of Zimmerman, NYLJ, Aug. 1, 1996, at 27, col 2). [*7]

Karen's contention that the items sought in Paragraph #3 of the Citibank subpoena are not discoverable is rejected. Initially, Karen is precluded from challenging that portion of the Citibank subpoena, due to her lack of proprietary interest in those records and documents (see Matter of Cappetta, 42 NY2d 1066, 1067; B'Nai Jonah v Kuriansky, 172 AD2d 35, 37). In any event, for the reasons set forth, supra, this contention is meritless (Matter of DuBray, 132 AD2d 914, supra; Matter of Fox, 100 AD2d 744, supra; Matter of Schneier, 50 AD2d 715, supra).

Moreover, the court rejects Karen's contention that certain of the documents requested in the Higgins subpoena are protected from disclosure by the attorney-client privilege. To the extent that the Higgins subpoena seeks the production of documents related to the "preparation, execution or revocation" of the propounded instrument, a statutory exception to the attorney-client privilege exists in this will contest (see CPLR 4503[b]). To the extent that the Higgins subpoena seeks production of documents which relate to the valuation of decedent's assets, John, as an objectant in the instant will contest, is entitled to waive on decedent's behalf any attorney-client privilege applicable to the content of those documents (see Matter of Bronner, 7 Misc 3d 1023(A); see also Mayorga v Tate, 302 AD2d 11; 8 Wigmore, Evidence § 2329 [McNaughton rev - 1961]).

Finally, the court notes that Karen's objections to the Morgese subpoena are moot, in light of Morgese's partial compliance with that subpoena (Matter of Brunswick Hosp. v Hynes, 52 NY2d 333, 339; People v Burnette, 160 Misc 2d 1005, 1007).

Accordingly, the motion to quash/modify or for a protective order as to the four disputed subpoenas duces tecum is hereby denied, in all respects.

Notices of Deposition

Since Higgins has already been examined under SCPA 1404, and both Higgins and Jordan are non-parties in this proceeding, their prospective examinations are governed by CPLR article 31. The prevailing law in this judicial department requires a party seeking disclosure from a non-party witness to show not only that the information sought is material and necessary, but also that "special circumstances" exist , warranting the disclosure (see Dioguardi v St. John's Riverside Hosp., 144 AD2d 333, 334 [2d Dept, 1988]). Special circumstances are shown not merely by establishing that the information sought is relevant, but by establishing that the information likely cannot be obtained from other sources (see Lanzello v Lakritz, 287 AD2d 601).

Additionally, in a contested probate proceeding, a party ordinarily will not be permitted to hold an additional examination of an attesting witness or attorney/draftsman who has already been examined under SCPA 1404. In determining whether a second examination of such witness is appropriate, the court will consider certain factors, including the inconvenience of the examination, the location of the witnesses, and any prejudice which would result to an objectant if the additional examination was denied (Matter of Cesario, NYLJ, Oct. 19, 1993, at 32, col. 5).

Initially, as to both examinations sought, the court finds that John has made an adequate record of "special circumstances" which support the requested examinations. More particularly, he has established that: (i) both Higgins and Jordan may be privy to information [*8]concerning the nature and valuation of decedent's assets before and at the time of his death; and (ii) each may have engaged in conversations and transactions with Karen subsequent to decedent's death which raise factual discrepancies about the foregoing information when compared with information obtained from Karen. Moreover, notwithstanding the provision in the court's February 2005 Order requiring the examinations of all non-party witnesses to be held on the court's premises in White Plains, John has agreed to conduct the prospective examinations of Higgins and Jordan in Nassau County - which is the appropriate venue for those examinations (see CPLR 3110[2]). Finally, if these examinations were not allowed, John and William, as objectants, would incur significant prejudice in pursuit of their proof as to the issue of undue influence. For the foregoing reasons, the court concludes that examinations of both Higgins and Jordan constitute appropriate disclosure from non-party witnesses, and that sufficient "special circumstances" exist for John to conduct an additional examination of Higgins.

The court notes, however, that the examinations of Higgins and Jordan should have been sought by subpoenas, rather than notices of deposition (see CPLR 3106[b]; Matter of Chambers, NYLJ, Nov. 2, 2001, at 21, col. 5, supra). On that basis alone, Karen's motion for a protective order is granted, solely to the extent that the two disputed Notices of Deposition are vacated, without prejudice. Pursuant to the amended disclosure schedule set forth, infra, John may serve subpoenas ad testificandum upon Higgins and Jordan, and shall conduct their respective examinations in Nassau County.

The Cross-Motion

1. Additional Examination of Higgins

For the reasons set forth and under the conditions outlined, supra, the court hereby grants that branch of John's cross motion to compel an additional examination of Higgins.

2. Application to Compel Karen to Produce Documents

That branch of the cross motion by which John seeks to compel Karen, pursuant to CPLR 3124, to produce all documents set forth in Paragraphs 2, 3, 6, 9, 14 and 17 of the First D&I Notice, is granted in part, and denied in part. As set forth, supra, the test for disclosure under CPLR 3101 is whether the information sought is "material and necessary" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406, supra). In this regard, CPLR 3120(a)(1)(i) authorizes service of a demand for the production of documents "in the possession, custody or control of the party served". To be entitled to such production, the party seeking disclosure must make at least a preliminary showing that the items in question are, or should be, in the possession, custody or control of the party from whom the materials are sought (see Pickens v Hercules, 134 AD2d 222). A party may not be compelled to produce information that does not exist or that he or she does not control or possess (see Hawley v Hasgo Power Equip. Sales, 269 AD2d 804).

As to the documents sought pursuant to [*9]Paragraphs 2, 3 and 6, John is entitled to such documents, as they may be germane to the objections alleging that Karen both defrauded decedent and engaged in a pattern of undue influence over him (see Matter of Bernstein, NYLJ, May 3, 2000, at 32, col. 1; Matter of Kortchmar, NYLJ, Jan. 31, 1992, at 29, col. 2, supra). Accordingly, Karen's objections to these items in her Response to the First D&I Demand are stricken, and the cross motion is granted to the extent that, if the documents sought pursuant to Paragraphs 2, 3 and 6 are within Karen's "possession, control or custody", she shall produce them within 30 days of John's service upon her of this Decision and Order. [FN7]

As to the documents sought pursuant to Paragraph 9, John has failed to make the requisite showing that the documents requested are in Karen's "possession, control or custody". Accordingly, the court cannot compel Karen to comply with Paragraph 9 at this juncture, and the cross motion is denied as to the items sought therein. In the event John ultimately establishes Karen's "possession, custody or control" of the requested documents, upon due application, the court will compel their disclosure at that time, and fashion an appropriate sanction against Karen (see CPLR 3126).

As to the documents sought pursuant to Paragraph 14, contrary to Karen's contentions, Karen's personal wills are not protected by the attorney-client privilege (see Matter of Freilich, 179 Misc 2d 884, 887-888; cf. Matter of Johnson, 127 Misc 2d 1048). Nevertheless, given the privacy concerns attendant to those documents, the court finds that John has failed to make the requisite showing to warrant their production (Matter of Freilich, supra). Accordingly, the cross motion is denied as to the items sought in Paragraph 14.

As to the items sought pursuant to Paragraph 17, the court finds that this demand is overly broad and, in any event, the documents sought would most likely be produced pursuant to Paragraphs 2, 3 and 6. Accordingly, the cross motion is denied as to the items sought in Paragraph 17.

3. Application for HIPPA Authorizations and

Conduct of Informal Interviews of Physicians

John's request to have the court direct the Public Administrator to execute HIPPA-compliant authorizations in order to allow John to conduct informal interviews of physicians and other medical professionals is denied.

Initially, John has failed to present any authority that such "informal" interviews of physicians and medical personnel - a common practice in medical malpractice and personal injury cases - occur regularly, or even occasionally, in contested probate proceedings. Secondly, John has failed to produce any appellate authority to contravene the prevailing rule in all judicial departments that such informal interviews of physicians are permissible only after formal disclosure has been completed and a note of issue filed (see Levande v Dines, 153 AD2d 671[2d Dept. 1989] see also; Luce ex rel. Luce v State of New York, 266 AD2d 877 [4th Dept. 1999]; Fraylich v Maimonides Hosp., 251 AD2d 251 [1st Dept 1998]; Tiborsky v Martorella, 188 AD2d 795 [3d Dept. 1992]). Finally, there are absolutely no provisions in the CPLR or the Uniform Rules for Surrogate's Courts which permit these "informal" interviews in contested probate litigation.[*10]

In support of his application, John has submitted recent authority from several different Supreme Courts which have addressed this issue in the context of tort cases (see Keshecki v St. Vincent's Med. Ctr., 5 Misc 3d 539 [Richmond Cty, 2004]; see also, Wise, Courts Split on Privacy Act Effect On Disclosure, NYLJ, March 29, 2005, at 1, col .3). The court has reviewed other recent Supreme Court decisions analyzing the effect the enactment of HIPPA in 2003 has had on the disclosure process in tort cases. Some of those courts determined that a court order requiring plaintiffs to execute HIPPA-compliant authorizations to permit these informal interviews was appropriate (see Hitchcock v Suddaby, 7 Misc 3d 1026[A] [Erie]; Smith v Rafalin, 6 Misc 3d 1041[A] [New York]; Steele

v Clifton Springs Hosp., 6 Misc 3d 953 [Monroe]; Keshecki v St. Vincent's Med. Ctr., supra). Other courts have declined to issue such orders (see Holzle v Healthcare Srvs. Group, 7 Misc 3d 1027[A] [Niagara]; Valli v Viviani, 7 Misc 3d 1002[A] [Suffolk]; Browne v Horbar, 6 Misc 3d 780 [New York]). In those cases where the courts have declined to issue an order directing the issuance of HIPPA-compliant authorizations to permit informal interviews, the courts found that : (i) HIPPA has not created any substantive rights or remedies in the courts, and (ii) the process of requiring HIPPA-compliant authorizations to permit "informal" interviews of physicians as a means of disclosure was a matter for the Legislature or an appellate court to consider (see Holzle v Healthcare Srvs. Group, supra; Valli v Viviani, supra). At this juncture, this court, similarly, elects to wait for legislative or appellate direction on this issue.

Instead, the court hereby takes the following practical approach to the use of HIPPA-compliant authorizations in this contested probate proceeding: (i) objectants should prepare HIPPA-compliant authorizations for the Public Administrator's signature; (ii) to the extent the Public Administrator has not already done so, he should provide the objectants with written authorizations for the release of medical records (see CPLR 4504[c]); and (iii) following the execution and return of said authorizations to them, objectants should serve disclosure subpoenas on decedent's physicians and other medical personnel from whom they seek disclosure, pursuant to CPLR 3122 (see Matter of Ettinger, 7 Misc 3d 316, supra; see also Gibbs and Carew, New Wrinkles On An Old Face - The Will Contest, NYLJ, June 23, 2005, at 3, col. 1).

Revised Disclosure Schedule

In light of the foregoing determinations, the disclosure schedule for this proceeding, originally set forth in the February 2005 Order and the April 2005 Stipulation, is hereby amended, to the extent indicated:

1. Document / Disclosure Demands: As to any disclosure demands not specifically addressed in this Decision and Order:

(i) Any outstanding disclosure demands are to be complied with on or before Friday, August 5, 2005;

(ii) Any prospective disclosure demands, particularly notices for discovery and inspection, are to be served on or before Friday, August 26, 2005, and are to be complied with no later than Friday, September 30, 2005.

[*11]2. Examinations Before Trial - Parties: All examinations before trial of the parties shall be held on or before Friday, October 28, 2005. These examinations shall take place at the Surrogate's Court, Westchester County, at dates and times to be determined by counsel in writing , subject to approval of the Court.

3. Examinations Before Trial - Non-Parties and Experts: All examinations before trial of all non-parties and experts, including Higgins and Jordan, shall be held on or before Friday, October 28, 2005. These examinations shall take place at dates, times and locations to be determined by counsel in writing, consistent with the applicable provisions of CPLR article 31.

4. Dispositive Motions: Upon the completion of the disclosure pursuant to

the foregoing schedule, any dispositive motion (i.e., motion for summary judgment) shall be made returnable to the Court no later than Wednesday, December 14, 2005. No oral argument shall be required.

In the event no dispositive motions are filed and served by Wednesday, November 23, 2005, then, on or before Wednesday, December 14, 2005, petitioner shall file with the court a Note of Issue / Certificate of Readiness and Order Framing Issues (see 22 NYCRR 207.29, 207.31).

5. Calendar Control Date: The calendar control date for this proceeding is Wednesday, December 14, 2005, at 9:30 a.m.

Any provisions of the February 2005 Order and April 2005 Stipulation not amended by the foregoing terms shall remain in full force and effect.

Unless informed otherwise by the court, all counsel shall appear for an all-purpose conference on Wednesday, December 14, 2005, at 9:30 a.m. The conference shall commence immediately after the matter is called on the court's calendar that day.

THIS IS THE DECISION AND ORDER OF THE COURT.

The following papers were considered:

1. Karen's Notice of Motion, dated March 22, 2005, including the supporting affirmation and exhibits submitted therewith;

2A. John's Notice of Cross Motion, dated April 13, 2005, including the supporting affirmation, exhibits and memorandum of law submitted therewith;

2B. John's Affirmation in Opposition to the Motion and IN Support of the Cross Motion, dated April 13, 2005, including the exhibits submitted therewith;

3. William's; Affidavit in Opposition to the Motion and In Support of the Cross Motion, dated April 19, 2005;

4A. Karen's Affidavit in Opposition to the Cross Motion / Reply in Support of the Motion, dated April 27, 2005;

4B. Counsel's Affirmation in Opposition to the Cross Motion / Reply in Support of the Motion, dated April 27, 2005, including exhibit and memorandum of law submitted therewith; and

5. John's Affidavit in Reply in Support of the Cross Motion, dated May 2, 2005, with supporting affirmation, exhibits and memorandum of law submitted therewith. [*12]

Dated:White Plains, NY

July 14, 2005

___________________________

HON. ANTHONY A. SCARPINO, JR.

Westchester County Surrogate Footnotes

Footnote 1:The objections to probate are allege lack of due execution, lack of testamentary capacity, and undue influence and fraud exercised by Karen over decedent.

Footnote 2:In November 2004, both Higgins and Burns were examined, pursuant to SCPA 1404. [*13]

Footnote 3:In May 1995, decedent executed a power of attorney in Karen's favor. On April 3, 2001, decedent executed a durable power of attorney in favor of Karen and/or John, which permitted either of them to act individually as decedent's attorney-in-fact.

Footnote 4:As a result of the October 2004 Stipulation, the temporary letters proceeding was withdrawn, without prejudice, and the limited letters proceeding was stayed, pending further order of the court. Also, Karen withdrew her application to obtain preliminary letters testamentary.

Footnote 5:By stipulation "so ordered" by the court on April 16, 2005 ("April 2005 Stipulation"), certain deadlines set forth in the February 2005 Order were advanced, but the remaining provisions of that Order remained intact.

Footnote 6:Notwithstanding the foregoing ruling, the provisions in the four disputed subpoenas where John specified an applicable time frame for disclosure shorter than the amended period approved by the court herein (i.e., April 3, 1996 through January 1, 2005) shall remain intact, in all respects (see, Citibank Subpoena, Paragraphs # 1 , #2 and #3; Higgins Subpoena, Paragraphs #1 through #5).

Footnote 7:Pursuant to the terms of the First D&I Demand and this Decision and Order, Karen shall produce documents in her possession for the following time periods: (i) any documents produced pursuant to Paragraphs 2 and 3, from April 3, 1996 through June 3, 2004; and (ii) any documents produced pursuant to Paragraph 6, from April 3, 1996 through January 1, 2005.