This is a proceeding to probate a lost will pursuant to SCPA 1407. The decedent, Arshaluys A. Babakhanian, died on April 13, 2007, survived by two brothers, Aramazd Babakhanian and Ararat Babakhanian, and a sister, Anahit Babakhanian, who are his sole distributees. The petitioner is Edward Arzooman a/k/a Heros Arzooman, who is a nephew of the decedent and the sole residuary beneficiary under the propounded instrument dated January 30, 1981. Under Article FIFTH of the propounded will, Edward's bequest remains in trust for his benefit until his twenty-fifth birthday, at which time the entire principal and accrued interest is payable to him outright. Edward seeks to probate a copy of the propounded instrument.

Prior to commencing the probate proceeding, Edward commenced a proceeding to compel production of the original January 30, 1981 will. Aramazd was named as the respondent in that proceeding. He appeared pursuant to the order to attend and was examined on June 20, 2007. The original transcript and thirteen pages of changes to the transcript are in the court's file.

Aramazd and Ararat, who are both parties to the probate proceeding, move for a protective order pursuant to CPLR 3103 to vacate the notice to take Aramazd's deposition. In support of the motion, they have submitted only their attorney's affirmation. The sole ground raised in the affirmation is that Aramazd was examined for approximately four hours in the

proceeding to compel production of the original will and Edward should not be entitled to examine him again in this proceeding. The attorney argues that Aramazd's testimony in the prior proceeding shows that he has never seen the original will and has no knowledge of its whereabouts or about anything material or necessary to the proceeding to probate the lost will. The attorney asserts that to allow Edward to examine Aramazd again in this proceeding would be abusive, superfluous and serve no purpose other than to harass him and waste estate assets. Edward and Anahit have opposed the motion.Generally, there is full disclosure of all matter "material and necessary" in the prosecution or defense of an action or proceeding (CPLR 3101 [a]). It is well settled that the court has broad discretion over the discovery process to decide whether information sought is "material and necessary"(Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The words "material and necessary" are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy. The test is one of usefulness and reason (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740 [2000]).

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 [*2]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] [citation omitted]; Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452, 252-253 [2d Dept 1994] [citations omitted]). A motion for a protective order should not granted when "supported solely by an attorney's affirmation containing only conclusory allegations of hardship" (id.).

The proceeding in which Aramazd was examined was one to compel production of a will pursuant to SCPA 1401. As this court observed in Matter of Vieillard (17 Misc 2d 703 [Sur Ct, Nassau County 1979]), the purpose of SCPA 1401 (former Surrogate's Court Act § 137) is to discover whether any paper purporting to be a will was drafted and executed and is or ever was in existence. The question of its revocation, whether by physical destruction or otherwise, or its validity in any other respect, is not material. "The purpose of the statute is salutary in that it offers opportunity to interested persons to discover the existence of a will which may represent the plan and purpose of the testator better than the one offered for probate" (Matter of Johnson, 253 App Div 698, 700 [2d Dept 1938] (discussing Surrogate's Court Act § 137)).

In such a proceeding the examination is not to discover evidence that may be used in any other proceeding beyond the fact that such a will is or was in existence. It does not contemplate that there shall be evidence taken concerning the mental or physical condition of the decedent at the time of making any such will, nor the circumstances of its execution, nor its provisions. The purpose is to discover whether any such paper purporting to be a will was drafted and executed or purported to be executed, without going into the question of its validity; who were the persons present; who were witnesses to such will; who had the custody of the will at that time or at any subsequent time; the possession thereof by any person and what was done with it; when and where it was last seen; and what persons have conspired to destroy, retain or conceal such will or testamentary instrument, or have knowledge of such facts (id.).

A proceeding to probate a lost will is governed by SCPA 1407 and offers relief different from a proceeding to compel production of a will. In order to probate a lost will, the petitioner must prove that the will was not revoked, that it was executed in conformance with EPTL 3-2.1 and that its provisions are "clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete" (SCPA 1407).The fact that Aramazd, a party to both proceedings, was examined in the proceeding to compel production of the decedent's will does not impinge upon or foreclose Edward's right to depose him in the pending lost will proceeding where his attorney's affirmation contains only allegations of hardship which fall far short of meeting Aramazd's burden of proving that being deposed in the lost will proceeding will cause him "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" (CPLR 3103 [a]). Accordingly, the motion for a protective order is denied.

This is the decision and order of the court, and no further order need be submitted.

Dated: September 29, 2008 [*3]

JOHN B. RIORDAN

Judge of the

Surrogate's Court

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FLECK, FLECK & FLECK, ESQS.

Attorneys for Respondents, BABAKHANIAN

1205 Franklin Avenue, Suite 300

Garden City, New York11530

(516) 742-5200

LAURINO & LAURINO, ESQS.

Attorneys for Petitioner, EDWARD ARZOOMAN

a/k/a HEROS ARZOOMAN

229 Seventh Street

Garden City, New York 11530

(516) 248-4771

ROBERT G. McDERMOTT, ESQ.

Attorney for Distributee, ANAHIT ARZOOMAN

350 Motor Parkway, Suite 200

Hauppauge, New York11788

(631) 414-0094