Matter of Lombardi

[*1] Matter of Lombardi 2012 NY Slip Op 50911(U) Decided on May 22, 2012 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2012
Sur Ct, Bronx County

Estate of Carmine Rocco Lombardi, Deceased



2011-316



Bellin & Associates, LLC (Aytan Y. Bellin, Esq., of counsel) for proponents, David Lombardi and Enzo Lombardi

Kurzman, Eisenberg, Corbin & Lever, LLP (Michael H. Friedman, Esq., of counsel) for Antoinetta Lombardi and Mateus Soares, objectants

Lee L. Holzman, J.

In this probate proceeding in which objections were filed by two alleged nonmarital children, the proponents moved for leave to obtain discovery from the objectants for a period longer than three years prior to the date of the propounded instrument and two years thereafter. On the return date of the motion, counsel for the proponents stated that they sought the discovery solely with regard to issues relating to the status of the objectants under EPTL 4-1.2, and not with regard to any issue affecting the validity of the propounded instrument.

For the reasons stated on the record in open court, the court determined that the rule popularly known as the "3-2" rule (see Uniform Rules for Sur Ct [22 NYCRR] §207.27) was never intended to apply where the issue of whether an alleged non-marital child is a distributee of his father having the status to file objections to probate (SCPA 1410) depends upon whether the alleged non marital child is entitled to inherit from his father under EPTL 4-1.2. When the movants also indicated that even though they declined the objectants' offer to have DNA testing determine paternity, they nevertheless wished to examine the objectants' mother about her relationships with other men and other children she might have, the court ruled on the record in open court that such discovery was not relevant, material or necessary to a determination of the issues pending before the court (see CPLR 3101) .

Proceed accordingly.

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SURROGATE