Matter of Zanfordino

[*1] Matter of Zanfordino 2013 NY Slip Op 51545(U) Decided on September 23, 2013 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 23, 2013
Sur Ct, Dutchess County

In the Matter of Probate Proceeding, Will of Joseph Anthony Zanfordino a/k/a JOSEPH A. ZANFORDINO, Deceased.



2012-205(P)



BRIAN E. CARLIN, ESQ.

RYDER, COSTELLO & CARLIN, ESQS.

Attorneys for Petitioner

HALLIE PHYLLIS HELMS a/k/a

HALLIE PHYLLIS HELMS ZANFORDINO

45 Gleneida Avenue

P.O. Box 150

Carmel, New York 10512

GEORGE DAVID ROSENBAUM, ESQ.

ROSENBAUM & ROSENBAUM, P.C.

Attorneys for Objectants

DANIELLE ZANFORDINO and DARYL ZANFORDINO

110 Wall Street, 21st Floor

New York, New York 10005

James D. Pagones, J.

This unopposed application by objectant, Daniel Zanfordino ("objectant"), for an order pursuant to CPLR §3126 precluding petitioner Hallie Phyllis Helms a/k/a Hallie Phyllis Helms Zanfordino ("petitioner") from testifying at trial for her failure to obey this Court's preliminary proceedings (discovery) order, dated May 3, 2012, and for a further order, pursuant to SCPA §711, disqualifying her from serving as the executrix under decedent's will, is granted as follows.

It is settled that the Surrogate's Court has "full and complete general jurisdiction in law [*2]and in equity to administer justice in all matters relating to estates and the affairs of decedents...to try and determine all questions, legal or equitable, arising between any and all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires." (SCPA §201[3]).

The matter in controversy is the probate of decedent's last will, dated October 4, 2011. Objections have been filed by Daryl Zanfordino and Danielle Zanfordino, the decedent's surviving adult children. They are the decedent's children from a prior relationship. Petitioner is their stepmother. The objectants are each one-quarter alternate legatees under the residuary clause of the propounded instrument. Objectant Danielle Zanfordino is also nominated as an alternate co-executrix.

Counsel for petitioner and objectants completed a preliminary proceedings (discovery) stipulation, which was "so ordered" on May 3, 2012. On May 14, 2012, objectants served a demand for production of documents and interrogatories.[FN1] Counsel for objectants followed up with correspondence to petitioner's counsel requesting compliance.[FN2] The discovery order directed that discovery and inspection of documents was to be completed by June 1, 2012. It appears from counsel's affirmation in support that there has been a complete lack of compliance with the order.

Petitioner has not responded to this application alleging her non-compliance with the Court's discovery order and her lack of fitness to serve as executrix. The Court can accept the allegations of fact as true pursuant to SCPA §509. (Matter of Faust, NYLJ, dated March 5, 2007, at 32, col. 1 [Sur Ct, NY County].)

CPLR §3126 permits the court "to fashion an appropriate remedy when a party refuses to obey an order of disclosure or willfully fails to disclose information." (Matter of Scaccia, 66 AD3d 1247, 1250 [3d Dept. 2009], quoting Cavanaugh v. Russell Sage College, 4 AD3d 660 [3d Dept. 2004].) The type and degree of the sanction will not be disturbed absent a clear abuse of the trial court's discretion. (Matter of Scaccia at 1250.)

There can be no question that petitioner's failure to respond to objectant's discovery demands for over one (1) year and lack of compliance with the Court's discovery order is the result of willful and deliberate conduct. Given the Court's authority to accept objectant's allegations as true and the lack of any opposition to this application or justification for the conduct, an order precluding petitioner from testifying at trial is the appropriate sanction pursuant to CPLR §3126(2). (Matter of Scaccia, supra.)

The objectant's unchallenged allegations that petitioner is pillaging, wasting or improperly applying the assets of the estate in advance of probate is sufficient to disqualify her from serving as executrix. (SCPA §§201[3]; 711[2].) The legal predicament that arises from this determination is objectant's status as a nominated alternate co-executrix to the will she seeks to set aside. It is illogical to direct her to pursue its probate under the circumstances. [*3]

In order to advance the estate and equity, the Court directs Danielle Zanfordino, as distributee of the decedent's estate, to file a petition for temporary administration, pursuant to SCPA Article 9, within twenty (20) days from the date of this decision.

Counsel for objectant is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.

The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

September 23, 2013

ENTER

HON. JAMES D. PAGONES, S.C.J. Footnotes

Footnote 1:Rosenbaum affirmation, Ex. E

Footnote 2:Id, Ex. F