Matter of Cavallo

Matter of Cavallo 2009 NY Slip Op 07251 [66 AD3d 675] October 6, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

In the Matter of the Estate of Gregory Cavallo, Also Known as Gregory M. Cavallo, Deceased. Rebecca Pytosh, Appellant; Marie Cavallo et al., Respondents.

—[*1] Greenfield Stein & Senior, LLP, New York, N.Y. (Harvey E. Corn and Jeffery H. Sheetz of counsel), for appellant.

Behrins & Behrins, P.C., Staten Island, N.Y. (Bruce G. Behrins and Susan R. Schneider of counsel), for respondents.

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.

Ordered that the appeal from the order is dismissed, as that order was superseded by the resettled order; and it is further,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 [2004]; see Lanzello v Lakritz, 287 AD2d 601 [2001]). 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 [1996]; see Tannenbaum v Tenenbaum, 8 AD3d at 360; Matter of Validation Review Assoc. [Berkun—Schimel], 237 AD2d 614, 615 [1997]). 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.