Matter of Levine
Annotate this CaseDecided on March 29, 2013
Sur Ct, Nassau County
In the Matter of the Petition of Mark C. Peltz, Executor of the Estate of Jules B. Levine, Deceased, For Discovery Pursuant to SCPA 2103.
2011-363619/D
John R. Morken, Esq. (for Benjamin Levine & Annie Levine-Krimstock)
Farrell Fritz 1320 RXR Plaza
Uniondale, NY 11556
Martin R. Lee, Esq. (for Mark Peltz)
Warshaw Bernstein
555 Fifth Ave.
New York, NY 10017
Heather M. Barney, Esq.
Markewich & Rosenstock
18 E. 48th Street, 10th Floor
New York, NY 10017
Edward W. McCarty, J.
In this miscellaneous proceeding, the petitioner, Mark C. Peltz, the executor of the estate of Jules B. Levine, moves for an order issuing a commission to Cathy S. Reiman, Esq. of Roetzel & Ardress, or such other person authorized to conduct depositions in the State of Florida, as commissioner to compel the attendance and supervise the conducting of the depositions upon oral questions of (i) Peter Brochin; (ii) Susan Karbel; (iii) John Thornton; and (iv) Patricia Thornton, non-party witnesses located in Florida and to subpoena from each of such non-parties copies of any documentation that each such witness has which may identify any items that are or were in the possession of Mary Ann Levine from July 1, 2010 to the present. The respondent, Mary Ann Levine, opposes and cross-moves for an order (i) reimbursing her for the costs of having traveled to Florida to arrange for and be present at the inspection of furnishings in a warehouse pursuant to a prior order of this court; (ii) declaring that the right to conduct such inspection has been waived and abandoned; and (iii) awarding attorney's fees and other appropriate sanctions by reason of the executor's conduct in bringing the prior motion to inspect the warehouse and the instant motion.
BACKGROUND [*2]
The decedent, Jules B. Levine, died a resident of Nassau County on December 25, 2010, survived by his wife, Mary Ann, and the children of his first marriage, Benjamin J. Levine and Annie R. Krimstock. A will dated October 1, 2010 was admitted to probate on February 23, 2011, and letters testamentary issued that same date to the petitioner, who was named as the executor in the will. The will left the decedent's surviving spouse all of the decedent's automobiles and his boat located in Florida. The will also created a trust for the decedent's surviving spouse and bequeathed to the trust $7,500,000.00, one-half of the proceeds of the sale of the house in Florida owned by the decedent, as well as the house in Long Beach and the apartment in Montauk owned by the decedent, along with their household furnishings and effects, for the use of the surviving spouse during her lifetime. Upon the death of the surviving spouse, the remaining trust assets were to be divided in half and placed in trusts for the decedent's children.
The petitioner commenced a proceeding seeking to obtain information concerning: (i) the ownership of funds in a Bank of America account titled in the names of the decedent and his surviving spouse, Mary Ann, and (ii) personal and household effects removed from the Long Beach house, the Montauk apartment and the Florida house which had been owned by the decedent. The respondent surviving spouse, Mary Ann, interposed an answer to the petition in which she asserts that the proceeds of the joint account at the Bank of America belong to her under the terms of the prenuptial agreement she signed with the decedent, and she further asserts that any items she removed from the Long Beach, Montauk and Florida properties belong to her.
MOTION FOR A COMMISSION
The petitioner has brought a motion for a commission to take the depositions of Peter Brochin, Susan Karbel, John Thornton and Patricia Thornton, non-party witnesses located in Florida. Petitioner claims that, upon information and belief, all of the furniture, furnishings and personalty were removed from the Florida house upon Mary Ann's instruction, prior to decedent's death without consultation with anyone. Petitioner states that each of the proposed deponents has material information about the items taken from the decedent's estate and that were, or are, in the Florida warehouse. John and Patricia Thornton are the prior owners of the Levines' home and petitioner believes they could testify as to what items of furniture remained in the Florida home at the time of sale. Susan Karbel's name was found on documents produced from the Florida warehouse in response to a document subpoena. Upon information and belief, Peter Brochin was hired by Mary Ann to remove possessions from the Florida warehouse to take to another warehouse.
Mary Ann's counsel argues that "[t]his is a total waste of time" and [e]nough is enough." Mary Ann's counsel argues that petitioner has spent an "inordinate amount of time chasing after fantasies that are not true, have no basis in fact and which are a compete waste of Estate assets not to mention Mrs. Levine's counsel fees."
An executor has a duty to marshal the assets of the estate (Matter of Haberstich, 169 Misc 2d 543, 545 [Sur Ct, New York County 1996]). In consequence of the duty to marshal the decedent's assets, an executor who fails to pursue an action to recover property belonging to the estate may be subject to surcharge for his failure to do so (see Matter of Jurgielewicz, NYLJ, Feb 15, 1996, at 33, col 5 [Sur Ct, Suffolk County]). Moreover, if Mary Ann believes that [*3]petitioner's commencement of the discovery proceeding is frivolous, she may pursue her remedies in an accounting proceeding.
Concerning the request for a commission, the law is well-settled that: "Pursuant to CPLR 3108, a party may take an oral deposition outside the state under an open commission where it is demonstrated to be necessary or convenient. The reason for this procedural device is that service of a subpoena outside of New York State is ineffective to compel a non-party witness to appear at a deposition or produce documents. In order to justify the issuance of a commission to take the deposition of an out-of-state non-party witness, the party seeking the commission must demonstrate the information sought is material and necessary to the prosecution or defense of the claims. The moving party must establish that the witness possesses relevant evidence, or that an examination of the witness would be reasonably calculated to lead to the discovery of information bearing on the claims or defense at issue.Generally, however, the party seeking an open commission must demonstrate not only 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 the other state. Absent any showing that the "the proposed out-of state deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that the judicial imprimatur accompanying a commission will be necessary or helpful when the [designee] seeks the assistance of the foreign court in compelling the witness to attend the examination, the moving party fails to demonstrate that a commission is necessary or convenient" (2000 Arthur Ave. Corp. v Hardy, NYLJ, Sept. 17, 2009, at 28, col 3 [Sup Ct, Westchester County]) (internal citations and quotation marks omitted).
Petitioner has demonstrated that the testimony of the non-party witnesses and the information sought are relevant. Nevertheless, the present application, like the prior application made by petitioner in this proceeding, is devoid of information concerning efforts, if any, made by petitioner's counsel to obtain the cooperation and voluntary appearance of the non-party witnesses. All that the petitioner offers is the claim that "[p]etitioner has no other method of obtaining the testimony of said witnesses other than by issuing subpoenas to the Non-Party Witnesses." There is no evidence that counsel endeavored to secure any of the proposed witnesses' voluntary appearance.
Accordingly, the motion for a commission is denied without prejudice to renewal within 30 days from the date of this decision and upon submission of proof with respect to the unavailability of the witnesses and documents.
THE CROSS-MOTION
By decision and order dated October 15, 2012 (Dec. Nos. 28022 and 28023), this court granted petitioner's application to permit the petitioner to conduct an examination of the contents of the Florida warehouse. The decision and order provided as follows:
"Within fifteen days of the date of this order, the respondent is directed to provide the petitioner with written authorization allowing him to inspect the property being stored by the [*4]respondent at the Florida warehouse. The respondent shall execute any documentation required by the warehouse to allow such inspection by the petitioner to take place."
Mary Ann now cross-moves for an order reimbursing her for the costs of having traveled to Florida to arrange for and be present at the inspection and declaring that the right to conduct such inspection was waived and abandoned by petitioner. Mary Ann also moves for attorney's fees and sanctions.
Mary Ann's counsel states that she desired to have a representative present at such inspection and, therefore, requested that petitioner provide potential dates for the inspection. Mary Ann's counsel gave petitioner's counsel various dates on which the inspection could occur. Mary Ann's counsel claims that it was not until November 12, 2012 that petitioner's counsel advised that petitioner intended to inspect the warehouse on November 26, 2012. Mary Ann confirmed that she would make arrangements for the inspection on that date. Mary Ann went to Florida on that date and made arrangements to have her counsel available at the time of the inspection. Mary Ann's counsel acknowledges that by e-mail dated November 19, 2012, petitioner's counsel requested further information concerning the location of items that were previously removed from the Florida warehouse. Mary Ann's counsel also claims that the information concerning these furnishings had already been provided in earlier discovery and had nothing to do with the inspection. By e-mail dated November 19, 2012, Mary Ann's counsel reminded petitioner's counsel that Mary Ann arranged her trip to Florida so that the inspection could proceed on November 26, 2012. Counsel also advised as follows:
"If you do not plan to conduct the inspection on November 26, 2012, notwithstanding the court's direction and your prior representation, we will treat your conduct as having waived that inspection since obviously you have no interest in looking at the items in the warehouse."
Mary Ann traveled to Florida for the inspection on November 26, 2012. As a result, Mary Ann made the instant cross-motion.
Petitioner's counsel has submitted an affirmation in opposition to the cross-motion in which he states that he wrote to Mary Ann's counsel on November 12, 2012. His letter stated as follows:
"To avoid waste of time and expenses in that regard, please confirm that all of the items removed from the decedent's premises in Florida, Long Beach, Montauk and the Viking boat still remain at the Huff warehouse. If there are any exceptions to such confirmation, please list them and the location where those items are to be found."
Petitioner's counsel claims that Mary Ann's counsel repeatedly ignored his request. On November 19, 2012, petitioner's counsel sent an e-mail which stated "This information is needed in advance of any examination to obviate wasted time and expense in respect of the pending process."
Petitioner's counsel further argues that Mary Ann's counsel acknowledged that some of the items had been removed from the Florida warehouse. Petitioner's counsel claims that Mary Ann has taken the position that she could remove whatever she wanted from the Florida warehouse prior to the inspection and that petitioner is entitled to inspect only what items remain [*5]in the warehouse as opposed to the court's decision and order which allowed "an inspection of the items placed in a Florida warehouse."
The court agrees with petitioner's counsel that Mary Ann's interpretation would render the court's directive meaningless. Morever, the court's prior order did not require Mary Ann's presence at the inspection or the scheduling of the inspection on a mutually agreed upon date. The prior order simply provided that Mary Ann provide the petitioner with written authorization.
The cross-motion is therefore denied in its entirety. In order to effectuate the court's prior order, Mary Ann shall provide petitioner with a list of the property removed from the warehouse within 30 days of the date of this decision. Petitioner shall inspect the warehouse within 30 days of the receipt of the list of removed items, if any. To the extent that petitioner shall fail to do so, the right to inspect the Florida warehouse shall be deemed to have been waived.
This constitutes the decision and order of the court.
Dated: March 29, 2013
EDWARD W. McCARTY III
Judge of the
Surrogate's Court
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