Matter of Barich
Annotate this CaseDecided on December 16, 2010
Sur Ct, Dutchess County
In the Matter of the Estate of Susan L. Barich, Deceased.
95487/E
MIRIAM HANTOUT
Pro Se
PAUL HYL, ESQ.
GENSER, DUBOW, GENSER
& CONA, LLP
445 Broad Hollow Road, Suite 19
Melville, New York 11747
DOUGLAS F. WICKS, ESQ.
WALSH, WICKS & SALISBURY
7405 South Broadway
Red Hook, New York 12571
ROBERT J. LACKAYE, ESQ.
90 Market Street
P.O. Box 5188
Poughkeepsie, New York 12602
KELLY L. TRAVER, ESQ.
GELLERT & KLEIN, P.C.
75 Washington Street
Poughkeepsie, New York 12601
James D. Pagones, J.
This motion by attorney Kelly L. Traver ("Traver") of the firm of Gellert & Klein, P.C. for an order pursuant to CPLR §2304 quashing a subpoena duces tecum, dated October 1, 2010, [*2]served by Miriam Hantout ("Hantout"), the self-represented executrix in this estate, and for a protective order pursuant to CPLR §3103(a), is granted.
Initially, the Court notes that the controverted subpoena is a blend of a subpoena requiring Traver to appear for oral examination and a subpoena duces tecum requiring the production of documents, as follows:
"ALL ESTATE RELATED BOOKS, RECORDS, CORRESPONDENCE, TELEPHONE LOGS, AND EMAILS INCIDENT TO THE PREPARATION, SERVICE AND FILING IN THE SAID SURROGATE'S COURT OF THE EXECUTOR'S COUNTER DECREE,
Now in your custody, and all other deeds, evidences and writings, which you have in your
custody or power, concerning the premises."
BACKGROUND
Traver has submitted an unrebutted affidavit regarding facts which are relevant to the application under consideration. The Gellert & Klein firm is the fourth firm to have represented Hantout in this estate. Hantout is now self-represented. Traver's services were retained by Hantout on or about August 3, 2010 solely for the purpose of preparing a proposed decree consistent with this court's decision, dated and entered June 11, 2010. That decision was rendered in connection with an accounting filed by Hantout which was contested by a residuary beneficiary under the decedent's will. Counsel fees and disbursements were the main subjects of the decision.
Hantout provided Traver with most of the documentation needed to prepare the decree. A decree based upon the June 11, 2010 decision was submitted by Hantout's previous counsel. It was signed on August 23, 2010. On August 26 2010, Traver received a copy of the signed decree judicially settling Hantout's account. On August 27, 2010, Traver received a copy of a motion filed by the firm of Walsh, Wicks & Salisbury ("Walsh") to renew its application for legal fees which were examined by this court in its decision of June 11, 2010. On August 31, 2010, Hantout severed her relationship with the Gellert & Klein firm. The attorney/client relationship lasted approximately four (4) weeks.
Hantout filed a cross-motion to vacate the decree, dated August 23, 2010, on September 21,
2010 and in opposition to the Walsh firm's application to renew. Hantout, thereafter, on October
12, 2010, served the controverted subpoena.
DECISION AND ORDER
Initially, the Court assigns no probative value to Hantout's unsubstantiated vituperative accusations that Traver is a prevaricator.
Until recently, many decisions issued by the Supreme Court, Appellate Division, Second Department, involving nonparty discovery held that "special circumstances" must be shown. (see e.g. Katz v. Katz, 55 AD3d 680, 683 [2d Dept. 2008]; Tannenbaum v. Tenenbaum, 8 AD3d 360 [2d Dept. 2004].) In the case of Kooper v. Kooper, 74 AD3d 6, at 16 [2d Dept. 2010], the Second Department determined that "special circumstances" need not be shown for a particular demand for discovery from a nonparty to withstand a motion to quash.
The Kooper decision did find that "[i]nclusion of the language circumstances or reasons such disclosure is sought or required' from a nonparty (CPLR 3101[a][[4]) indicates that something more than mere relevance is required if the discovery request is challenged...As a [*3]matter of policy, nonparties ordinarily should not be burdened with responding to subpoenas for lawsuits in which they have no stake or interest unless the particular circumstances of the case require their involvement." (pg. 18).
A motion to quash is also sustainable where the party issuing the subpoena fails to establish that the information was otherwise unobtainable from alternative sources. (Moran v. McCarthy, Safrath & Carbone, P.C., 31 AD3d 725, 726 [2d Dept. 2006], leave appeal dismissed 8 NY3d 9 [2007]; Tannenbaum v. Tenenbaum, supra at 360.)
A plain reading of the Hantout subpoena indicates it is facially invalid for the reason it neither contains, nor is it accompanied by, a notice setting forth the reason why such disclosure is requested. (CPLR 3101[a][4]; Moran v. McCarthy, Safrath & Carbone, P.C., supra at 726; Matter of Ehmer, 272 AD2d 540, 541 [2d Dept. 2000].)
Attorney Traver has established that the documents requested by Hantout have either been previously provided, are already in Hantout's possession, or do not exist. Requiring Traver to appear for oral examination for a purpose not adequately explained would be an inefficient use of judicial economy and serve no useful purpose. The motion to quash is granted for the foregoing reasons.
On this application, the Court considered the notice of motion to quash supported by an affidavit with three (3) exhibits, answering affidavit with eleven (11) exhibits, and reply affidavit.
The foregoing constitutes the decision and order of the
Court.
Dated:Poughkeepsie, New York
December 16, 2010
ENTER
HON. JAMES D. PAGONES, S.C.J.
121410 decision & order
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