Matter of Demato

[*1] Matter of Demato 2007 NY Slip Op 51115(U) [15 Misc 3d 1142(A)] Decided on May 30, 2007 Surrogate's Court, Nassau County Riordan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2007
Surrogate's Court, Nassau County

In the Matter of the Petition of Arnold Mittler, as Executor of the Estate of David Demato, a/k/a David Dee, Deceased, For an Order Pursuant to SCPA 2103 Directing Discovery Concerning the Location and Extent of Personal Property Removed from Decedent's Estate and Return of Such Personal Property to the Estate of David DeMato a/k/a David Dee.



336669



The appearance of counsel are as follows:

Robert D. Goldstein, Esq.

Aisha L. Joseph, Esq.

Epstein Becker & Green, P.C.

250 Park Avenue

New York, NY 10177

(Attorney for Petitioner)

Charles A. Singer, Esq.

500 Bi-County Boulevard, Suite 12N

Farmingdale, NY 11735

(Attorney for Zurich Bank)

Lawrence P. Murphy, Jr., Esq.

Mahon, Mahon & Kerins, LLP

254 Nassau Boulevard

Garden City, NY 11530

(Attorney for Respondent Ann Tramutolo)

Christopher Ronin, Esq.

Bill Parkas, Esq.

McCoyd, Parkas & Ronin

1100 Franklin Avenue

Garden City, NY 11530

(Attorneys for Respondent Rosemarie Messemer)

Donald L. Lawrence, P.C.

670 White Plains Road

Suite 325

Scarsdale, NY 10583

(Attorney for Executor Arnold Mittler)

Joseph R. Albanese, Esq.

1050 Franklin Avenue

Garden City, NY 11530

(Attorney for Florence DeMato)

John B. Riordan, J.

The petitioner has moved for an order granting an "open" commission (CPLR 3108, 3113) to the appropriate authority having jurisdiction of civil causes of action in Broward County, Florida to compel the testimony of and production of documents from Sun Trust Bank, Fort Lauderdale, Florida. An "open" commission contemplates the appointment of a commissioner before whom the witness is examined orally by the parties' attorneys. See Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984]; 9-112 Warren's Heaton §112.05[4][a]).

The petitioner requests that two attorneys from the law firm representing her, Epstein Becker & Green, P.C., be appointed as commissioners to take the deposition of non-party witnesses from Sun Trust Bank and to authorize those attorneys to serve subpoenas duces tecum for the production of documents.

In the underlying matter it is alleged that the respondent Ann Tramutolo opened the decedent's safe deposit box as a deputy on January 21, 2005 shortly after decedent's death. Petitioner alleges that there is evidence that the safe deposit box contained $1,272,000 in cash at the time of David DeMato's death. Subsequently, the box was opened by petitioner's Florida counsel and no assets of value were found. In her deposition and responses to interrogatories, the respondent had admitted that she accessed the safe deposit box on the date of decedent's death and removed $20,000 in cash pursuant to the prior direction of the decedent to provide for her living expenses until the will was admitted to probate. The decedent's will, which was admitted to probate, provides that the respondent shares the residuary with decedent's sister Rosemarie Messemer, subject to the right of election of decedent's spouse, Florence DeMato.

Respondent does not object to an order granting an open commission. However, she objects to the costs of this commission and requests that the legal fees or travel expenses associated with this commission not be paid to the Epstein, Becker firm until such time as the [*2]proceeding is resolved favorably for the estate. She further objects to petitioner incurring what she classifies as unnecessary expenses in support of a "glorified fishing expedition." Alternatively, respondent requests that the expenses and disbursements of her attorney and counsel for Rosemarie Messemer and Florence DeMato be paid as estate expenses. Respondent also objects to the designation of two commissioners and suggests that the commissioner should be an attorney from the Miami office of Epstein, Becker and Green, P.C., unless all attorneys are authorized to travel and participate at estate expense.

Pursuant to CPLR 3108 a party may take an oral examination outside the state under an open commission where it is demonstrated to be necessary and convenient (Macker v Sears Roebuck & Co., 275 AD2d 308 [2d Dept 2000]). This is so because the service of a subpoena outside of New York is ineffective to compel a witness to appear at a deposition or produce documents (CPLR 3108, CPLR 3113; Wiseman v American Motors Sales Corp., 103 AD2d 230, 235 [2d Dept 1984]; Matter of Van Gerbig, NYLJ, September 24, 1996 at 27, col. 4 [Sur Ct Westchester County]).

Generally, however, the party seeking an open commission must not only demonstrate that the information sought is necessary to the investigation of the claim but also that a voluntary appearance or compliance by the witness is unlikely or that discovery cannot be obtained by stipulation or the cooperation of the witness either in New York or Florida (Matter of Gerbig, NYLJ, September 26, 1996 at 27, col. 4). The present application is devoid of any information concerning efforts by petitioner's counsel to obtain the voluntary cooperation of Sun Trust Bank.Accordingly, the motion for a commission is denied without prejudice to renew upon submission of proof with respect to the unavailability of the witnesses and documents (Karaduman v Newsday, Inc., 95 AD2d 669 [1st Dept 1983]; see e.g., Matter of Kelligrew, NYLJ, October 11, 2006, 2006 NY Misc Lexis 5205 [Sur Ct. Westchester Co.]). In the event this application is renewed petitioner should note that a commission may not issue to the attorneys of a party nor to certain specified others (CPLR 3113; SCPA 508[1]; 40 NY Jur 2d, Decedent's Estates §1215; 2 New York Civ. Prac.-SCPA §508.0l). Preferably a commission should issue to an attorney duly admitted to practice in the State of Florida otherwise eligible under CPLR 3113. The expenses of the commissioner should be paid from the estate (Corona Hair Net Corp. v Chemaco, Ltd, 33 AD2d 1001 [1st Dept 1970]; Matter of Onder, NYLJ, July 13, 1992 at 33, col. 5 [New York Co. Sur Ct]), and the expenses of the petitioner should be paid by the estate in the first instance, subject to his account. The expenses of the respondent and

other parties should be paid by them but may be taxed as disbursements by the prevailing litigant (Wiseman v American Motor Sales Corp., 103 AD2d 230, 241 [2d Dept 1984]).

Settle order.

Dated: May 30, 2007

JOHN B. RIORDAN

Judge of the

Surrogate's Court [*3]