Matter of DiChiaro

[*1] Matter of DiChiaro 2005 NY Slip Op 52402(U) [22 Misc 3d 1119(A)] Decided on December 7, 2005 Sur Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2005
Sur Ct, Westchester County

In the Matter of the Probate Proceeding, Will of Bart F. DiChiaro, a/k/a Bartholomew DiChiaro, Deceased.



229/2004



Chadbourne, O'Neill, Thompson, Whalen & Fitzgerald, Attorneys for Petitioner, 18 Anderson Avenue, P.O. Box 701, Sleepy Hollow, NY 10591-0701.

Littman Krooks LLP, Attorneys for Respondents/Objectants, 655 Third Avenue, 20th Floor, New York, NY 10017.

Richard S. Bimbaum, Esq., Guardian Ad Litem, 200 Mamaroneck Avenue, Suite 504, White Plains, NY 10601.

Anthony A. Scarpino, Jr., J.

In this contested probate proceeding, the petitioner, and spouse, of Bart F. DiChiaro (decedent), moves to: preclude the objectants from offering evidence on all matters as to which they have failed to supply a timely response to her request for a bill of particulars; dismiss the objections for failure to timely respond to discovery requests; grant summary judgment dismissing the objections on their merits; and impose sanctions pursuant to 22 NYCRR 130.1.1. Bart DiChiaro (Bart Jr.) and his sons James and Michael (collectively designated as "respondents" or "objectants") oppose the motion. The Guardian Ad Litem (GAL) appointed to represent the interests of the decedent's minor grandchildren, who are adversely affected by the propounded instrument, has also filed an affirmation opposing the relief sought.

The decedent passed away on June 11, 2003. On January 26,2004, Bart Jr. filed for Letters of Administration of his late father's estate, serving citations on all persons interested, including the decedent's spouse, Meredith Say. That petition alleged, inter alia, that two testamentary Instruments, dated March 3, 2000 and May 12, 2003 respectively, were being held in the offices of the drafting attorney, James T. Meyer, Esq., but that the petitioner did not believe that either instrument was a valid will. On the return date of the citation, the court requested that the two testamentary instruments be filed with the court. In response to the petition, the decedent's spouse filed this proceeding, offering for probate the instrument dated May 12,2003, which named her as the executrix and sole beneficiary. After failing to timely oppose the probate petition, the respondents moved for, and were granted, leave to file late objections. The objections were filed, but rejected by the petitioner as unverified. Several days later, verified objections were duly served.

A discovery conference was held with the court. Depositions of the drafting [*2]attorney, the witnesses to the will and the petitioner were scheduled and, ultimately, taken. The petitioner also served her discovery demands, a request for expert witness information and a demand for a bill of particulars which was composed of 36 itemized queries, some containing several sub-parts. No objection to the demand was made.

Months later, the respondents served a bill of particulars which was verified by counsel, although counsel and the parties are located in the same county (see CPLR 3020[d]). Petitioner's counsel attempted, on several occasions, to Contact respondents' counsel concerning various alleged deficiencies, both procedural and substantive, in the bill of particulars, requesting that counsel contact him to resolve the matter without judicial intervention.

After considerable delay, a further bill was served, which the petitioner asserts is, once again, improperly verified and a nullity. Counsel rejected and returned the further bill on the day it was served, September 30, 2005. This motion ensued. The respondents oppose the motion by counsel's affirmation, asserting that the supplemental bill has been properly verified and served, that the demand improperly seeks particulars as to which the petitioner has the burden of proof and requests information within the knowledge and control of the petitioner.

Demands for bills of particulars and responses to such demands are governed by CPLR 3041 and 3042, and in Surrogate's Courts, by the Uniform Rules for Surrogate's Court, 22 NYCR § 207.23. The purpose of a bill of particulars is to amplify the pleadings, limit proof and prevent surprise at trial (Nuss v Pettibone Mercury Corp., 112 AD2d 744 (1985]; In re May's Will, 17 AD2d 729 [1962]), not to provide evidentiary material or as a vehicle for discovery requests (Frequency Electronics Inc. v We're Associates, 90 AD2d 822 [1982]; Kenler v Weissbach, 61 AD2d 976 [1978]).

At the outset, the court notes that the remedy for a defective bill of particulars (CPLR 3042[c]) is a motion to compel compliance or for penalties pursuant to CPLR 3042[d], rather than to return the allegedly defective bill (Luzata v Bollacker, 36 AD2d 789 [1971]. The petitioner asserts that the bill Is defective in multiple ways, in that it does not provide particularity as to the objections, and some responses, such as "see response to No.6", do not provide direct answers.

Although the respondents have protested that the petitioner's request seeks information within her own knowledge, the purpose of the bill of particulars is to expand the allegations of the pleadings, not to provide discovery.

The objectants also protest that they are not required to respond with particulars on issues as to which the petitioner bears the burden of proof Matter of Reynolds, 38 AD2d 788[1972]; Matter of Holler, NYLJ 1/13/93,27 at 3). The Surrogate's Court Rules provide that certain information shall be routinely furnished to the proponent in a contested probate proceeding, and the court has the authority to order an objectant to provide particulars beyond those enumerated (see 22 NYCR § 20723). However, the Appellate Division, Second Department has held that a bill may be required only as to matters upon which the responder bears the burden of proof (Matter of Reynolds, 38 AD2d 788; Matter of Heller, NYLJ 1/13/93, 27 at 3). Because the petitioner bears the burden of proof on the issues of due execution and [*3]testamentary capacity, requests 3 through 5 are stricken, as are 35 and 36 (see Id). Requests 1 and 2 are also improper in a bill of particulars and are stricken (Frequency Electronics Inc. v We're Associates, 90 AD2d 822).

The court concurs with the movant that many of the petitioner's responses fail to offer the required particularity. Additionally, some responses cite the answers to other requests, rather than providing direct, responsive answers. Indeed, one answer refers to an earlier response, which itself refers to a still earlier response.

Accordingly, the motion is granted to the extent that the objectants are directed to file a further verified bill of particulars in accordance with CPLR 3042 and 22 NYCR § 207.23 and the cases decided thereunder, with all queries answered with particularity and specificity, by individual responses rather than by reference to another numbered response. This response shall be served upon the petitioner and the court within 20 days of the date of service upon objectants of a copy of this decision and order, or the objectants shall be precluded from offering proof upon any matter as to which they have failed to provide particulars.

The court recognizes that the proponent's demand is extremely long and detailed, with a number of items appearing to be virtually indistinguishable from each other, but no cross-motion for relief has been made (CPLR 3042[e], nor did the objectants protest when the request was first served upon them.

Despite the tardiness and inadequacy of the objectant's responses, the petitioner has not established grounds for the Imposition of the ultimate sanction of immediate preclusion (see CPLR 3042; Spitzer v 2166 Bronx Park East Corps., 284 AD2d 177 [2001]; Randazzo v Our Lady of Mercy Med. Center, 284 AD2d 158[2001], and that portion of the motion Is denied.

The branches of the motion seeking dismissal and summary judgment are denied as premature, because discovery is not complete, and factual issues remain unresolved (CPLR 3212; see Estate of Kumstar, 66 NY2d 691 [1985]; Matter of Herman, 289 AD2d 239 [2001]).

The request for the imposition of sanctions pursuant to 22 NYCRR 130.1 is denied as without basis in law or fact.

This matter is hereby placed on the court's calendar for a conference with a court attorney-referee on January 11, 2005 at 9:30 a.m.

The papers considered upon the instant application consist of: (i) the Notice of Motion dated September 14, 2005 and all papers annexed thereto; (ii) Affirmation in Opposition of William Lancaster dated September 28, 2005 and all papers annexed thereto; (iii) Answering Affirmation of Guardian Ad Litem to Motion to Preclude, dated September 28, 2005; (iv) Reply Affirmation of Dennis Fitzgerald, dated October 11,2005 and all papers annexed thereto.

THE FOREGOING CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*4]

Dated: White Plains, NY December 7 2005

Hon. Anthony A. Scarpino, Jr.