Matter of Cugini
Annotate this CaseDecided on March 12, 2013
Sur Ct, Richmond County
In the Matter of the Estate of Mary Cugini, a/k/a MARY E. CUGINI, Deceased.
2008-983
Petitioner's Attorney: James A. Dollard, Esq.,
Phone: 718-983-8000
Objectant's Attorney: Nicholas Martino, Jr., Esq.
Phone: 718-605-7360
Pro Se Beneficiary: Barbara Cugini,
Phone: 718-761-3267
Robert J. Gigante, J.
The decedent, Mary Cugini, died on October 14, 2008, survived by six children. A petition seeking probate of an instrument dated July 18, 2006 and codicil dated May 6, 2008 was filed in November 2008. This matter has been bitterly contested since the petition for probate was filed, with objections to probate filed in November 2009, and various discovery motions and requests both before and since this date.
The within motion was filed by Donna Cugini Zancocchio (hereinafter "Objectant") to compel the Petitioner to comply with a Notice to Produce dated May 10, 2010, which sought "all bank account statements, checking account statements, brokerage account statements, checks, deposit slips, wire transferral slips, etc., for all financial institutions from January 1, 2004 to the present for Barbara Cugini and Christy Cugini."
In her affidavit supporting the motion, Objectant asserts that the financial records will corroborate that Barbara Cugini and Christy Cugini regularly misappropriated and stole money from the decedent, and further, that these transactions evidence the influence and control held over the decedent.
In response, the Petitioner Christy Cugini opposes the production of the documents because, inter alia, the demand is overly broad, and the records sought are not material and necessary to the within probate proceeding.
Article 31 of the CPLR determines the items that are discoverable. Generally, CPLR 3101 directs full disclosure of all evidence that is material and necessary, and which will "assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ'g. Co., 21 NY2d 403 [1968]; Matter of Carvel, 168 Misc 2d 442 [Sur Ct, Westchester County 1996]).
Here, the objections to probate include allegations that the decedent was under the [*2]duress and undue influence of Christy Cugini, Barbara Cugini and Elizabeth Cugini, and such influence caused the decedent to execute the will and codicil that are the subject of this proceeding. Accordingly, the Objectant must establish that the decedent was subjected to influence that amounted to moral coercion, that restrained her independent action and constrained her to do that which she was unable to refuse or too weak to resist (Matter of Engelhardt, 88 AD3d 997 [2d Dept 2011]). Mere speculation that the opportunity and motive to exert such influence is insufficient. The Objectant must establish that Christy Cugini, Barbara Cugini and Elizabeth Cugini had the motive and opportunity, and actually exerted undue influence over the decedent (Matter of Chiurazzi, 296 AD406 [2d Dept 2002]; Matter of Conner, NYLJ, Apr. 21, 2011 at 29 [Sur Ct, New York County 2011]).
Evidence as to transactions between a testator and a beneficiary of his alleged will who is charged with fraud or undue influence is relevant as to the "possible showing of whatever opportunity the beneficiary may have had to have exercised fraud or undue influence and the testator's feeling or attitude toward him" (Matter of Boyle, 205 Misc497 [Sur Ct Broome County 1954]). Accordingly, the records relating to the transactions from the decedent's accounts are relevant to show the opportunity and motive by the beneficiaries to exercise undue influence upon the testator and may also shed light on the testator's relationship with these individuals.
The Court recognizes that summary judgment dismissing several objections to probate was granted on April 9, 2010, as the objections related to alleged misconduct of Barbara Cugini and Christy Cugini that would more appropriately be resolved in an accounting proceeding. Had Objectant's discovery request been made solely to prove such misconduct or to ascertain the location of the decedent's funds that were allegedly misappropriated, the request would be premature and denied. However the records were requested, in part, for Objectant to discover some evidence of undue influence and the Court finds the records relevant for that purpose.
Furthermore, although the disclosure of financial records, and particularly tax returns, is disfavored, such disclosure has been permitted by courts where the "high duty of conduct" of a fiduciary is at issue (Matter of DeSantis, 38 Misc 3d 1216(A) [Sur Ct Richmond County 2013]; Matter of Zirinsky, 26 Misc 3d 625 [Sur Ct Nassau County 2009]). Here, Christy Cugini, one of the parties who allegedly exerted undue influence over the decedent is the nominated executor in the instrument sought to be probated, and was issued preliminary letters testamentary on September 15, 2009. Accordingly, not only are Christy Cugini's actions in regard to his mother's accounts relevant as to the allegations that he exerted undue influence over her, but also to shed light on his conduct as a fiduciary.
Accordingly, in the interest of justice, and to provide the necessary discovery to move this contested probate proceeding to its next phase, the Objectant's motion to compel the Petitioner to comply with the Notice to Produce is granted, without costs and disbursements.
The records requested in the Notice to Produce dated May 10, 2010 must be provided to the Objectant within thirty days. This matter is restored to the Court's calendar of April 24, 2013 for control purposes.
This decision shall constitute the Order of the Court. [*3]
Dated: March 12, 2013
_____________________________ROBERT J. GIGANTE, Surrogate
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
