In these three probate proceedings in the estate of Brooke Russell Astor, (1) Anthony D. Marshall moves for an order for a partial stay or a protective order directing that his obligations to respond to all discovery demands that have been served on him temporarily be stayed until related criminal charges pending against him are resolved. The New York Public Library (the "Library") and the Metropolitan Museum of Art (the "Museum"), two charitable beneficiaries under the wills of Brooke Russell Astor, [*2]oppose the motion; (2) Robert M. Morgenthau, the District Attorney of the County of New York (the "District Attorney"), moves for an order granting him the right to intervene in these proceedings and then upon intervention, granting a stay of all proceedings pending the resolution of the criminal charges pending against Mr. Marshall. This motion is opposed by Mr. Marshall, the Library and the Museum; and (3) Andrew Cuomo, the Attorney General of the State of New York (the "Attorney General"), moves for an order granting a stay of all proceedings or in the alternative, a stay of all discovery except document discovery and setting a date for a conference 90 days after the issuance of the stay. The motions are decided as set forth below.

On August 13, 2007, Mrs. Astor died, survived by Mr. Marshall, her only child. On file with this court are three sets of paper writings, purporting to be wills of Mrs. Astor: (1) an instrument dated January 30, 2002, along with a first codicil dated December 18, 2003, a second codicil dated January 12, 2004, and a third codicil dated March 3, 2004 (the "2002 instruments"), (2) an instrument dated February 2, 2001, and a first codicil dated November 7, 2001, and (3) an instrument dated January 8, 1997, with a first codicil dated January 24, 1997 (the "1997 instruments").

JP Morgan Chase N.A ^[FN1]. and Annette de la Renta filed a petition for the probate of the 1997 instruments. Mr. Marshall filed a petition for the probate of the 2002 instrument and the first two codicils only. Philip Marshall also filed a petition for the probate of the 1997 instruments.

By order dated October 17, 2007, this court established a schedule for the taking of SCPA 1404 discovery. This order included dates for the exchange of documents and the depositions of 11 witnesses, with the first to be deposed on January 7, 2008.

On November 27, 2007, an indictment was unsealed against Mr. Marshall and Francis X. Morrissey. Esq. (the drafter of the third codicil to the 2002 instrument). The indictment alleges acts in furtherance of various crimes which took place from December 1, 2001 to on or about September 11, 2007. It charges Mr. Marshall with, among other things, crimes concerning the offering of the second codicil for probate, and Mr. Morrissey's drafting of the third codicil. At the arraignment, Mr. Marshall pleaded "not guilty".

By notice of motion dated December 10, 2007, Mr. Marshall moved for a partial stay and a protective order to suspend his obligations to respond to discovery demands until such time as the criminal proceeding was terminated. In opposition, the Library and the Museum argue that Mr. Marshall is not entitled to a stay or a protective order, that they are concerned about delay and possible prejudice due to Mr. Marshall's advancing age, that Mr. Marshall should be required to serve his documents subject to a privilege log, and that then Mr. Marshall could move for a protective order.

By notice of motion dated December 21, 2007, the District Attorney moved to intervene and, upon intervention, to stay all proceedings pending the resolution of the criminal charges pending against Messrs. Marshall and Morrissey. In support of his motion, the District Attorney argues that of the 18 counts contained in the indictment, [*3]seven relate directly to testamentary instruments before the court in these proceedings, that other counts are likely to relate to issues in this proceeding, and that many, if not all, the parties to be deposed will be called as witnesses in the criminal proceedings.

The Library and the Museum do not object to the intervention but argue that a blanket stay of discovery is not necessary; that document production should continue in order that they may assess the value of any settlement proposals they receive and that a stay of no more than six months be granted to allow the criminal proceeding to progress.

By notice of motion dated December 21, 2007, the Attorney General moved for a stay of all proceedings or in the alternative, a stay of all discovery except document discovery and setting a date for a conference 90 days after the issuance of the stay. The Attorney General argues that the District Attorney's application is reasonable because Mr. Marshall would be unfairly advantaged in his criminal defense if allowed civil discovery; that the parties to the civil proceedings would not be unduly prejudiced by a stay of a finite duration and that they might benefit if there is a resolution in the criminal proceeding.

Mr. Marshall in his reply to the motions now consents to the District Attorney's request for a stay provided that those parties who are currently in default of production of documents pursuant to the court's discovery order be ordered to make production prior to the stay.

The District Attorney moves to intervene under CPLR 1012[a][2] (as of right) or 1013 (by permission). The court finds no basis for intervention as of right. However, in accordance with CPLR 1013, the court exercises its discretion to grant intervention based on the common questions of fact and law between the criminal and civil proceedings (see Matter of USB Financial Services, Inc., 17 Misc 3d 1131).

CPLR 2201 provides that a court may grant a stay "in a proper case". The pendency of a criminal proceeding does not automatically stay a related civil proceeding (see DeSiervi v Liverzani, 136 AD2d 527). The issuance of a stay in the civil proceeding is directed to the sound discretion of the trial court (see Bank of New York v Levy, 123 AD2d 589). In deciding whether to issue the stay, the court may consider the risk of inconsistent adjudications, application of proof and potential waste of judicial resources (see Zonghetti v Jeromack, 150 AD2d 561). The court may also consider whether a party will invoke the Fifth Amendment privilege against self-incrimination in the civil proceeding (see Britt v International Bus Services, Inc., 255 AD2d 143; DeSiervi v Liverzani, supra).

Based on the above, the court grants a stay limited as follows: (1) the obligations of the parties under the October 17, 2007 order are stayed except that the parties shall complete document discovery as set forth in paragraph one of that order by January 28, 2008, (2) to the extent that any non-party subpoenas duces tecum served have not been returned prior to the date of this decision and order, the production thereunder is stayed, and (3) the stay is effective until further order of the court. The parties, including the District Attorney, shall appear at the call of the calendar on May 7, 2008, at 9:30 a.m., at which time the court will entertain oral argument on whether or to what extent the stay should be lifted. [*4]

The parties have expressed an interest to pursue settlement negotiations during the pendency of the criminal prosecution and that document production among the parties will facilitate that process. That process is not stayed by this decision and order. The court rejects the contention of the District Attorney that production of documents will necessarily advantage Mr. Marshall in the criminal proceeding. At a conference with the parties on December 19, 2007, the court was advised that most of the documents demanded among the parties had either been produced or had been made available for inspection. In addition, by order of the Supreme Court, New York County (Stackhouse, J.) dated December 5, 2007, the record of the guardianship proceedings of the decedent was unsealed, and those documents are now available to the parties.

Mr. Marshall's motion for a protective order is denied on this record. The court rejects Mr. Marshall's argument that he will be unfairly prejudiced if he is made to produce his documents because of the negative inference of asserting the Fifth Amendment privilege against self-incrimination. Mr. Marshall will produce his documents by the date set forth above. Any claims of privilege shall be the subject of a motion for a protective order which must be made returnable on or before February 13, 2008. The documents which the court determines are subject to the Fifth Amendment privilege against self-incrimination will not be produced until further order of this court. Given the issuance of the stay, no inference will be drawn from whatever privilege Mr. Marshall will seek to assert.

Except as otherwise provided herein, the motions are denied.

THIS IS THE DECISION AND ORDER OF THE COURT.

The following papers were considered:

Notice of motion by Anthony Marshall for a partial stay and protective order dated December 10, 2007, with affirmation of Kenneth E. Warner, Esq. dated December 10, 2007, with exhibits annexed and memorandum of law dated December 10, 2007;

Notice of motion by Robert M. Morgenthau, District Attorney of New York County for intervention and a stay dated December 21, 2007, with affirmation of Pierce Moser, Esq. dated December 10, 2007, with exhibits annexed and memorandum of law dated December 21, 2007;

Notice of Motion by Andrew M. Cuomo, Attorney General of the State of New York for a stay dated December 21, 2007, and memorandum of law dated December 21, 2007;

Memorandum of law dated December 21, 2007, submitted on behalf of the New York Public Library and the Metropolitan Museum of Art; [*5]

Affirmation of John J. Barnosky dated December 28, 2007, on behalf of the New York Public Library and the Metropolitan Museum of Art;

Affirmation of Kenneth E. Warner dated January 2, 2008. on behalf of Anthony Marshall.

Dated: White Plains, New York

January 4, 2008

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HON. ANTHONY A. SCARPINO, JR.

Westchester County Surrogate