Matter of Magnor

[*1] Matter of Magnor 2006 NY Slip Op 52157(U) [13 Misc 3d 1237(A)] Decided on November 15, 2006 Supreme Court, Nassau County Phelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 24, 2006; it will not be published in the printed Official Reports.

Decided on November 15, 2006
Supreme Court, Nassau County

In the Matter of the Application of Irene Deyette, Successor Trustee of the Trust Created U/T/W of James B. Magnor for leave to undertake enforcement procedure upon a money judgment James B. Magnor, Jr., surcharged Trustee of the Trust Created U/T/W of James B. Magnor, Deceased.



14926/05



Farrell Fritz, P.C.

Attorneys for Petitioner

1320 Reckson Plaza

Uniondale, NY 11556-1320

Forchelli, Curto, Schwartz, et al.

Attorneys for Carolyn Magnor and Jamie Magnor

330 Old Country Road

P. O. Box 31

Mineola, NY 11501

Albert C. Goudvis, Esq.

Attorney Pro Se

102 Marlborough Road

P. O. Box 2100

Briarcliff Manor, NY 10510

Thomas P. Phelan, J.

Application of non-party attorney Albert C. Goudvis for a protective order and an order quashing the combined subpoenas served upon him on June 12, 2006 is granted.

Cross-motion by respondents Carolyn and Jamie Magnor for an order finding that petitioner "has no right to the real property held by Bruce and Carolyn Magnor as tenants by the entirety" is denied.

The background of this case is adequately set forth in this Court's prior decision which can be found at Matter of Estate of James B. Magnor, [11 Misc 3d 1060(A)(Sup. Ct., Nassau Cty, 2006)]. In that decision this Court authorized additional discovery on the issue of this Court's long arm jurisdiction, and stated: "Petitioner's allegations that respondents received funds or property or both from Magnor, Jr's misappropriation of funds, if otherwise established after disclosure, will afford this court jurisdiction over respondents pursuant to SCPA 210(2)(b)."

Non-party Albert C. Goudvis is the former attorney for James B. Magnor, Jr. ("Magnor Jr."). The combined subpoenas seek production of thirty broad categories of documents from Attorney [*2]Goudvis on the grounds that "on information and belief, you possess information material and necessary in the prosecution of this action."

Relevance is not the standard for obtaining such disclosure from a non-party by means of a subpoena [Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 (2nd Dept. 2006); Tannenbaum v Tenenbaum, 8 AD3d 360 (2nd Dept. 2004)]. The required showing is one of special circumstances warranting such disclosure [Moran; Tannenbaum]. Such special circumstances have been found where the information sought was not otherwise obtainable from alternative sources [Moran; Tannenbaum; Degliuomini v Degliuomini, 308 AD2d 501 (2nd Dept. 2003)].

Here petitioner's attorney argues that none of the documents demanded in the subject subpoena have been produced by Carolyn Magnor, and states that Ms. Magnor's testimony offered little as to her contacts with Mr. Goudvis (Santoro affirmation, par.21). However petitioner has failed to explain how 30 broad categories of documents have some bearing on the issue of long-arm jurisdiction, and petitioner's attorney admits that he is awaiting receipt of documents from numerous financial institutions pursuant to authorizations from respondents .

The Court notes that the attorney-client privilege survives death [South Carolina State Highway Dept. v Booker, 260 S.C. 245 (1973)], and an executrix may exercise or waive the attorney-client privilege as to her decedent [see Mayorga v Tate, 302 AD2d 11 (2nd Dept. 2002)].

Mr. Goudvis asserts the attorney-client privilege as a basis for his motion. Aside from his lack of standing, the attorney-client privilege simply does not apply to cross-movant/respondent Jamie Magnor since she was never the executrix of Magnor Jr.'s estate. And cross-movant/respondent Carolyn Magnor, to whom the privilege might otherwise apply in her capacity as former executrix, does not seek to assert it. To the contrary, and as persuasively argued by counsel for petitioner, insofar as the requested disclosure seeks testimony and documents between movant and Carolyn Magnor much of the requested disclosure pre-dates her status as executrix and therefore does not involve potentially privileged communications. To the limited extent communication between movant Goudvis and Carolyn Magnor as executrix was potentially privileged, Carolyn Magnor has specifically denied an attorney-client relationship and otherwise responded to questioning regarding her dealings with movant Goudvis, thereby waiving any claim of privilege (see, Jakobleff v. Cerrato, Sweeney and Cohn, 97 AD2d 834).

Nevertheless, the Court concludes that the combined subpoenas are facially invalid as they neither contain, nor were accompanied by, a notice setting forth the reason why such disclosure was sought from a non-party [Moran; see CPLR 3101(a)(4)]. More importantly, there has been no showing of special circumstances, given the numerous documents that petitioner's attorney is waiting to receive. Furthermore, the combined subpoenas appear unduly burdensome [see generally White Bay Enterprises v Newsday, Inc., 288 AD2d 211 (2nd Dept. 2001)]. Based on the foregoing, attorney Goudvis is entitled to a protective order quashing the combined subpoenas.

Turning to the cross-motion, respondents seek to remove from petitioner's reach in enforcing the [*3]judgment against Magnor, Jr., as a matter of law, all real property formerly held by Magnor, Jr. and Carolyn Magnor as tenants by the entirety. Respondents characterize this request as one for a protective order barring all discovery of the aforementioned real property.

Tenancy by the entirety is available only to married couples; as long as the marriage remains intact, both parties are seized of the whole property and the death of one merely results in the defeasance of the deceased spouse's coextensive interest in the property [VRW, Inc. v Klein, 68 NY2d 560, 564 (1986)]. A conveyance by one tenant, to which the other has not consented, cannot bind the entire fee or impair the non-consenting spouse's survivorship interest [Id]. Unlike a joint tenancy with a right of survivorship, when the form of ownership is a tenancy by the entirety, there is no transfer upon death; the interest of the deceased spouse simply drops away [Kozyra v Goldstein, 146 Misc 2d 25, 27 (Sup Ct., Suffolk Cty, 1989)].

Petitioner does not dispute these principles of law in opposition to respondents' cross-motion (cf. petition, par. 39-42). Instead she argues that discovery regarding the real property held by Magnor, Jr. and Carolyn Magnor is relevant to this Court's jurisdiction over Carolyn. While the real properties at issue are located in Washington D.C., and Florida, petitioner is nevertheless entitled to details about these properties, such as when they were purchased and the source of the monies to make the purchases. In addition, as the misappropriation at issue took place before Magnor, Jr.'s death, discovery of information regarding purchases of any other parcels of real estate that took place before Magnor, Jr.'s death, is relevant.

The Court's concern here is that petitioner be allowed to pursue discovery on the issue of whether "respondents received funds or property or both from Magnor, Jr.'s misappropriation of funds." Consequently, the cross-motion is denied.

This decision constitutes the order of the court.

Dated:November 15, 2006 THOMAS P. PHELAN

J.S.C.