Matter of Soluri

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[*1] Matter of Soluri 2013 NY Slip Op 51067(U) Decided on June 28, 2013 Sur Ct, Nassau County McCarty, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2013
Sur Ct, Nassau County

In the Matter of the Probate Proceeding, Will of Janet Soluri, Deceased.



2010-361817



Patricia Harold, Esq.(for preliminary executor)

350 Old Country Road

Suite 101

Garden City, NY 11530

Raskin & Makofsky, LLP(for preliminary executor)

600 Old Country Road

Suite 444

Garden City, NY 11530

Edward J. Chesnik, Esq.(for objectants)

68 Wheatley Road

Brookville, NY 11545

Richard T. Kerins, Esq.(for Public Administrator)

Mahon, Mahon, Kerins & O'Brien

254 Nassau Boulevard

Garden City South, NY 11530

Eric T. Schneiderman

Attorney General of the State of New York

Charities Bureau

120 Broadway

New York, NY 10271

Edward W. McCarty, J.



In connection with a contested probate proceeding, the following two motions and one cross-motion are before the court:

1. Counsel for the objectants has filed a motion for an order pursuant to CPLR 3120 directing the proponent of the will to produce designated documents with decedent's signature.

2. Counsel for the proponent has filed a motion (a) to quash the judicial subpoena duces tecum served on decedent's prior attorney, Frank Lattanzio, Esq.; (b) for the issuance of a [*2]protective order, pursuant to CPLR 3103 (a); and (c) to stay the scheduled examination of Frank Lattanzio, Esq. pursuant to CPLR 3103 (b).

3. Along with opposition to the proponent's motion to quash, counsel for the objectants has filed a cross-motion to suspend or revoke preliminary letters issued to the nominated executor, James Young.

BACKGROUND

As set forth in greater detail in this court's previous Dec. No. 28109, issued on October 26, 2012, Janet Soluri died on February 19, 2010, survived by 17 paternal first cousins. Her last will and testament, dated February 2, 2010, contained three charitable bequests totaling $50,000.00. Decedent left her residuary estate to her neighbors, James Young and Joan Young ("James" and "Joan"), naming James as executor of her will. Preliminary letters issued to James on August 25, 2010. According to the List of Assets-Inventory filed by James, estate assets total $1,459,861.00. Objections to probate were filed on behalf of 14 of decedent's distributees, who are represented by one attorney. They are: (1) Matilda Amendola; (2) Ralph Bushey; (3) Rose Dobler; (4) Angelina Boyd; (5) Muriel Soluri; (6) Robert Cecilio; (7) Mary Razzano; (8) John Buscema; (9) Richard Cecilio; (10) Aldona McMichael; (11) Joseph Soluri; (12) Mary Ann Soluri; (13) Robert Soluri; and (14) Thomas Soluri.

ANALYSIS

1. Motion to Produce

Objectants' motion to produce seeks an order directing James to produce decedent's federal and state tax returns with e-file signature authorizations, and the following ten items with decedent's original signature, all of which were executed by the decedent more than three years prior to the date on which the decedent executed the document which James has offered for probate: 1. Power of Attorney executed by Janet Soluri on or about July 13, 2006;2. Health Care Proxy executed by Janet Soluri on or about July 13, 2006;3. Living Will executed by Janet Soluri on July 13, 2006;4. Check No. 139, dated December 12, 2005, payable to James and Joan Young for$2,500.00, from decedent's Chase Bank Account No. 91156575665;5. New York State Driver's License issued to Janet Soluri on or about October 25, 2004;6. Medicare Health Insurance Card dated November 1, 1997;7. Allstate Insurance Company identification card, undated;8. United Health Care identification card, undated;9. Manufacturer's Hanover Card, issued June 30, 1992; and10. Automobile Club of New York, Inc., identification card, valid through August 31,2008.

Counsel for James refused to produce any documents which were executed more than three years prior to the will execution, based upon § 207.27 of the Uniform Rules for Surrogate's Courts (22 NYCRR), which provides:

"In any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial, the items upon which the examination will be held shall be determined by application of article 31 of CPLR. Except upon the showing of special circumstances, the examination will be confined to a three-year period prior to the date of [*3]the propounded instrument and two years thereafter, or to the date of decedent's death, whichever is the shorter period."

The special circumstances argued by counsel for the objectants, in support of expansion of the three-year period, is that the handwriting expert hired by the objectants reached a preliminary conclusion that the name on the purported will does not appear to be a genuine signature, and he advised counsel that he needs to inspect at least ten more original signatures of the decedent. At the time the motion was filed, counsel for the objectants could not identify and locate sufficient original signatures within the three-year period prior to the date of the propounded instrument.

Counsel for James filed opposition to the motion and movant filed a reply affirmation. However, counsel for the objectants subsequently filed a supplemental affirmation advising the court that 14 additional original signatures of the decedent, all within three years of decedent's execution of the purported will, had been discovered. Counsel then advised the court that he would not withdraw the motion because the handwriting expert "has stated that he would still like to inspect and analyze the ten signatures which were the subject of [the] Motion to Produce." In the next paragraph, counsel for the objectants acknowledges that the discovery of the 14 signatures "may be dispositive of whether [counsel] demonstrated the existence of special circumstances."

The supplemental affirmation filed by counsel for the objectants seemingly acknowledges that the discovery of 14 additional original signatures of the decedent eliminated the possibility of special circumstances which might justify requiring the proponent to produce additional signatures dating beyond the three-year period. Whether the handwriting expert would "still like to inspect and analyze the ten signatures" which are beyond the three-year period is irrelevant. The motion is denied.

2. Motion to Quash

In this motion, counsel for James asks the court to: (a) quash the judicial subpoena duces tecum served on decedent's prior counsel, Frank Lattanzio ("Lattanzio"); (b) issue a protective order, pursuant to CPLR 3103 (a); and (c) stay the scheduled examination pursuant to CPLR 3103 (b). Counsel argues that the subpoena is defective because:

(A) the subpoena fails to state the reason disclosure is sought from a non-party, as required by CPLR 3101 (a) (4);

(B) the subpoena is vague and overly broad;

(C) the subpoena violates attorney-client privilege under CPLR 4503 (a) and falls outside the exception provided by CPLR 4503 (b); and

(D) the subpoena seeks information outside the scope of permissible discovery under Uniform Rules for Surrogate's Courts (22 NYCRR) § 207.27; and

(E) objectants have already received all discovery probative to the proceeding.

Counsel for the objectants responded by advising the court that shortly after decedent was discharged from a three-month nursing home stay, and six weeks prior to her being re-admitted, the decedent executed advanced directives on or about July 16, 2006, which were notarized or witnessed by Lattanzio. These directives named James and Joan as attorneys-in-fact and health care agents. Approximately three years later, James, as attorney-in-fact for the decedent, issued a check to Lattanzio in the amount of $200.00. Counsel for the objectants asserts that Lattanzio stated that he did not prepare a will for the decedent because she did not [*4]want one. Telephone records show that calls were placed from the home shared by James and Joan to Lattanzio's law office on December 28, 2009, January 4, 2010 and January 5, 2010. A fourth telephone call from the home of James and Joan was placed to the home of Lattanzio on January 6, 2010. The decedent was subsequently hospitalized on January 26, 2010 and discharged to home hospice care on February 2, 2010. The document offered for probate, which was not prepared by Lattanzio, was executed on February 3, 2010. The decedent died on February 19, 2010. A subpoena was served for the production of Lattanzio 's records and for his testimony at a deposition. The motion to quash followed.

In the initial letter from James's counsel requesting the withdrawal of the subpoena, only the attorney-client privilege was cited as a reason for withdrawal. The initial letter did not assert the arguments now made that: (a) the subpoena failed to state the reason non-party disclosure was sought; (b) the subpoena was overly broad; (c) the information sought is outside the permissible time period for discovery; and (d) the objectants have previously received all of the probative discovery documents. Counsel for the objectants argues that if opposing counsel had asked him to state the reasons the disclosure was sought, he would have done so.

The court will address each of the arguments raised in support of the motion to quash.

(A) The first argument put forth by counsel for James for quashing the subpoena is that the subpoena served on Lattanzio fails to meet the requirement of CPLR 3101 (a) (4) that the subpoena state the reason disclosure is sought from a non-party. Disclosure is available from parties to the litigation and from non-parties. As to non-parties, disclosure is available provided notice is given stating the circumstances or reasons such disclosure is sought (CPLR 3101 [a] [4]). The CPLR imposes these more stringent requirements for disclosure demands made on a non-party than on a party, "presumably to afford a nonparty who has no idea of the parties' dispute or a party affected by such request an opportunity to decide how to respond" (Velez v Hunts Point Multi-Service Center, Inc., 29 AD3d 104, 110 [1st Dept 2006]).

In this case, while Lattanzio is apparently aware of the reasons his testimony and records are sought, the subpoena failed to include the required notice. The Second Department has held that "a subpoena duces tecum served on a nonparty is "facially defective" and unenforceable if it neither contains, nor is accompanied by, a notice stating the circumstances or reasons such disclosure is sought or required" (Kooper v Kooper, 74 AD3d 6, 12 [2d Dept 2010], citing Matter of American Express Prop. Cas. Co. v Vinci, 63 AD3d 1055, 1056 [2d Dept 2009]; Wolf v Wolf, 300 AD2d 473 [2d Dept 2002];and Knitwork Prods. Corp. v Helfat, 234 AD2d 345, 346 [2d Dept 1996]).

(B) Counsel for James argues that the subpoena is vague and overly broad. The standard for discovery in New York requires full disclosure of all matter material and necessary in the prosecution or defense of an action (CPLR 3101 [a]). Disclosure is available from parties to the litigation and from non-parties. As to non-parties, disclosure is available provided notice is given stating the circumstances or reasons such disclosure is sought (CPLR 3101 [a] [4]).

Case law has broadly construed the scope of material that is discoverable, ruling that "the words material and necessary are to be interpreted liberally to require disclosure of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay the test is one of usefulness and reason" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406-407 [1968] [internal citations omitted]).

On a motion to quash a subpoena pursuant to CPLR 2304, the standard to be applied is whether the requested information "is utterly irrelevant to any proper inquiry" (Ayubo v Eastman [*5]Kodak Co., 158 AD2d 641, 642 [2d Dept 1990], quoting Matter of Dairymen's League Coop. Assn. v Murtagh, 274 App Div 591, 595 [1st Dept 1948], affd 299 NY 634 [1949]). Under CPLR 3103, protective orders are designed to deny, limit, condition or regulate the "use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103 [a]). "A motion for a protective order . . . is addressed to the sound discretion of the trial court . . ." (Boylin v Eagle Telephonics, 130 AD2d 538, 538 [2d Dept 1987] [internal and external citations omitted]). The burden is on the moving party to establish the need for a protective order (Koump v Smith, 25 NY2d 287, 294 [1969]; Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452, 452-453 [2d Dept 1994]).

The subpoena seeks "[c]opies of all records . . . maintained by [Lattanzio] relating to decedent, Janet Soluri . . . and her attorneys in fact, James and Joan Young . . . including, but not limited, to drafts and finals of any documents, time records, bills and telephone records and logs." This language falls within the parameters of CPLR 3120 (2), which requires identification of the sought items "by individual item or category" and a description of "each item and category with reasonable particularity." The court does not find the requested information irrelevant or the subpoena vague or overly broad.

(C) An additional basis put forth in support of quashing the subpoena is that it violates the attorney-client privilege under CPLR 4503 (a), which provides that confidential communication between an attorney or the attorney's employee and a client, which communication occurs in the context of a professional relationship, shall not be disclosed. The attorney-client privilege is designed to ensure that a client can confide in an attorney without concern that the information so imparted could be used to harm him in a legal proceeding before a court (Priest v Hennessy, 51 NY2d 62 [1980]). CPLR 4503 (a) (1) codified the attorney-client privilege; it bars disclosure of any confidential communications between a client and his/her attorney. The United States Supreme Court has held that this privilege extends beyond the death of a client (Swidler & Berlin v United States, 524 US 399 [1998]), on the basis that the candor with which a client speaks to his or her attorney could be negatively impacted if the client knew that the privilege would not apply after death.

It is argued by counsel for James that the subpoena is not covered by the exception provided by CPLR 4503 (b), which provides that in the context of a will contest, "an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument," except such communication that "would tend to disgrace the memory of the decedent" (CPLR 4503 [b]). This exception is based upon the assumption that clients understand that in the event of a will contest, confidentiality would have to be pierced in order to resolve the dispute (Matter of Levinsky's Will, 23 AD2d 25 [2d Dept 1965]). An attorney may testify concerning the preparation of a will or other relevant documents even if the will or documents are not those actually filed for probate and contested (Matter of Stacer's Will, 13 AD2d 164 [4th Dept 1961], affd 11 NY2d 780 [1962]).

Counsel for the objectants maintains that the specific information sought is not covered by privilege. Specifically, he would like to: (1) discover whether Lattanzio represented the decedent or someone else; (2) obtain copies of the billing records; (3) determine whether the telephone calls to the office of Lattanzio were to request legal services for the decedent; and (4) ask whether Lattanzio saw the decedent during the periods in question and, if so, what he observed of her physical and mental condition. [*6]

In this instance, the information sought relates to powers of attorney and health care proxies prepared on behalf of the decedent by a prior attorney, who did not prepare a last will and testament for the decedent. The court agrees that with counsel for the objectants that attorney client privilege does not cover identification of an attorney's client (People ex rel. Vogelstein v Warden of County Jail of New York County, 150 Misc 714 [Sup Ct, New York County 1934]), affd 242 AD 611 [1st Dept 1934]), an attorney's billing records (Priest v Hennessy, 51 NY2d 62 [1980]), whether telephone calls were made to request legal services (see Hoops v Carota, 74 NY2d 716, 717 [1989]), and an attorney's observations of his client's physical and mental condition (People v Kinder, 126 AD2d 60 [4th Dept 1987]). Moreover, the court finds that the testimony of Lattanzio concerning the preparation of the health care proxies, and the reason that counsel did not prepare a will for the decedent, fall within the exception provided by CPLR 4503 (b). The fact that some of the events being discussed occurred outside of the three-year period is discussed below, in paragraph (D).

(D) Counsel for James asserts that the subpoena seeks information outside the scope of permissible discovery under Uniform Rules for Surrogate's Courts (22 NYCRR) § 207.27. In support of extending discovery beyond the three-year period, counsel for the objectants cites Matter of Kaufmann, 11 AD2d 759 [1st Dept 1960]), in which the court found special circumstances to extend the period for discovery "arising from the long continued personal relationship between the testator and the proponent, who is a stranger to the blood, to indicate that on the issues of testamentary capacity and undue influence affecting the execution of the will, an examination in full scope is warranted" (id. at 759-760 ). The court finds that the facts presented warrant an extension of the period for discovery to include July 1, 2006 through February 19, 2010.

(E) While counsel for James asserts that the objectants have previously been given all probative discovery, the court disagrees, noting that the information sought has not yet been provided.

Accordingly, the motion to quash the subpoena and for a stay of the examination of Lattanzio is granted on the ground that counsel for the objectants failed to provide the non-party witness with the notice required under CPLR 3101 (a) (4). Counsel for the objectants may serve the subpoena again, with the inclusion of the required notice. The motion for a protective order is denied.

3. Cross-Motion for Suspension or Revocation of Letters

Counsel for the objectants filed a cross-motion in which he asked the court to suspend or revoke the preliminary letters issued to James, on the grounds that James' assertion of attorney-client privilege in response to the subpoena duces tecum served on Lattanzio is an abuse of James' fiduciary office and justifies the suspension or revocation of his letters.

Counsel for James opposes the motion, noting that this is counsel's third application for the same relief. She argues that the motion is based on spite and malice and is without merit and, therefore, the objectants should be held responsible for James's legal fees, costs and expenses associated with this proceeding, which amount to $2,800.00.

Counsel for the objectants filed a reply affirmation in which he reviews the reasons for, and outcomes of, his previous applications for the suspension or revocation of preliminary letters issued to James. Counsel argues that in the present application, grounds exist for the suspension or removal of James because he "is using his position as a Preliminary Fiduciary to stymie inquiry into his actions and conduct" by asserting attorney-client privilege in response to the [*7]subpoena.

The court may consider revocation of preliminary letters testamentary, pursuant to SCPA 1412 (6), on the basis of (a) unreasonable delay by the executor in the probate proceeding; (b) any reason for revocation set forth in SCPA 719; or (c) "the best interests of the estate."

Preliminary letters may be revoked or suspended where the fiduciary's conduct is deemed improvident (See Matter of Edelman, NYLJ, Nov. 19, 2009, at 38, col 6 (Sur Ct, Richmond County). In Edelman, which involved a dispute between two sisters, the court found improvident conduct where the preliminary executor refused to communicate with counsel, refused to cooperate in the sale of decedent's real property while living there without paying rent, and refused to defend the estate in a foreclosure action. The court suspended the preliminary executor's letters and scheduled an immediate hearing because of the urgency of the pending foreclosure action. In another decision, rendered in New York County, preliminary letters were suspended pending a hearing on the fiduciary's fitness to serve after the fiduciary admitted making distributions to herself, litigated unreasonably and refused to account (Matter of Taschereau, NYLJ, May 18, 2006, at 27, col 35 [Sur Ct, NY County]). The court particularly noted the fiduciary's lack of understanding concerning her role (id.).

Counsel for the objectants has failed to proffer any substantive basis for the suspension or removal of the preliminary executor. Moreover, although the court's discretionary power to revoke preliminary letters is broader than its power to revoke full letters testamentary, the court does not find that the revocation of the preliminary letters issued to James, and the appointment of a new administrator, would be in the best interests of the estate at this time.

The cross-motion is denied.

The request for payment of fees and costs is denied.

CONCLUSION

The motion to produce and the cross-motion to suspend or revoke letters are denied. The motion to quash and for a stay is granted; that portion of the motion which seeks a protective order is denied.

Dated: June 28, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court