In this compulsory accounting proceeding, Paul S. Forster, Esq., ("Movant) the co-administrator of the Estate moved for the following relief.

1)A protective order respecting his court ordered SCPA 2211(a) examination;

2)Permission to amend his petition to reflect a "settlement" with the New York State Tax Commissioner;

3)Requiring objectants to post security pursuant to CPLR 8501(b);

4)Disclosure as to, "whether the Court, or anyone with whom she has personal, social, financial, or political ties, has personal, social, financial or political ties with the Cean Owens Law Firm, LLC or any of its members, or with anyone who has personal, social, financial, or political ties to the Cean Owens Law Firm, LLC or with any of its members".

Decedent, Lawrence Feelings, died intestate on October 5, 1995, survived by his wife Maria Feelings and three children- Jacquelyn Owens, Lawrence Feelings Jr., and Larry Ellington. A petition and cross-petition for letters of administration were filed. Maria Feelings was represented by Movant. The children, Lawrence Feelings, Jr., Jacquelyn Owens, and Larry Ellington, were represented by Paul Fink, Esq. ("Fink"). On April 8, 1996, Acting Surrogate Scholnick appointed Movant and Fink, co-administrators of the Estate. [*2]

To date no assets have been distributed, except for some exempt property. On December 1, 2008, this Court issued a forty-five day order directing both administrators to account, in response to the petition of Jacqueline Owens to compel an accounting. The Order required Movant and Fink to file their accounts and petition for their judicial settlement.

On July 29, 2009, Movant filed his account as co-administrator and petitioned for its judicial settlement. The proceeding appeared on the process calendar on October 1, 2009, at which time Cassandra Cean, Esq., of the Cean Owens Law Firm appeared for Jacquelyn Owens and Larry Ellington. On that day the Court adjourned the matter for jurisdiction to be obtained over Lawrence Feelings, Jr.

On November 19, 2009, Cathy Harris, Esq., an attorney with the Cean Owens Law Firm, made an appearance on behalf of Lawrence Feelings, Jr.As jurisdiction was now complete the proceeding was marked, "conference calendar", as objections had been filed by Jacquelyn Owens.

The proceeding was conferenced on two separate dates with a court attorney-referee from this Court's Law Department. After the second conference, the Court issued an order ("Order") dated April 8, 2010 ^[FN1]. The Order provided, inter alia, that Movant and Fink submit affirmations of legal services, and Movant be examined on May 6, 2010, at 11 a.m., at the Surrogate's Court by counsel for objectant Jacquelyn Owens.

On the eve of his court-ordered SCPA 2211(a) examination, Movant filed this motion which had a return day of June 3, 2010. Movant failed to appear for his examination on May 6th, and failed to notify his adversary that he would not be appearing. On the return date of the motion, the matter was set down for a hearing. Before the hearing, Movant retained counsel who sought by letter to the Court to withdraw that portion of the motion seeking disclosure of the Court.At the hearing on July 19, 2010, the Court allowed Movant to withdraw the portion of the motion seeking discovery of the Court. However the Court reserved decision with regard to whether sanctions were warranted for having brought that branch of the motion. Movant's attorney indicated at the hearing that his client no longer was seeking a protective order and was now ready to proceed with discovery.

The balance of the motion is determined as follows:

The requested relief of amending the accounting is granted on condition Movant file and serve his amended accounting within fifteen days of the date of this decision/order, annexing an executed copy of the settlement agreement with the New York State Tax Department and the cancelled check showing payment. Objectants are granted twenty days from the serving and filing of the aforesaid documents to serve and file amended objections.

The request for an order pursuant to CPLR 8501(b) requiring the out-of-state objectants to post security is denied. CPLR 8501(b), the purpose of which is to protect defendants from frivolous suits by nonresident plaintiffs, is inapplicable to this proceeding. In this compulsory accounting proceeding, Movant is the petitioner. The operative statute here to obtain security for costs is SCPA 2303, which provides that the court may require a non-domiciliary to give [*3]security for costs in any proceeding in which an issue is raised by answer or objection by or on behalf of the nondomiciliary against a fiduciary.In determining whether security for costs is necessary, the court considers whether the party has an interest in the estate which could satisfy an imposition of costs, and whether the party's position has merit and a good possibility of success (Turano, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA §2303, 2010 Pocket Part, at 53-54).

The Court finds no basis for requiring objectants to give security for costs. The interposed objections on their face appear to have merit. The objectants are distributees who collectively are entitled to one-half of the residue of the Estate (see EPTL 4-1.1(a)(1)). Thus they would have a sufficient interest in the Estate to satisfy any imposition of costs. What is peculiar, however, in this accounting is that not only does Movant not render any distribution to Jacquelyn Owens, Lawrence Feelings Jr., or Larry Ellington, he asserts that they are jointly and severally liable for, and owe the Estate the aggregate sum of $90,008.95.^[FN2]

The Court sua sponte orders that a hearing be held to allow Mr. Foster an opportunity to be heard regarding the imposition of sanctions with regard to whether he engaged in frivolous conduct as defined in NYCRR 130-1.1 (see Kamen v Diaz-Kamen, 40 AD3d 937 [2d Dept 2007]). The particular conduct that shall be the subject of the hearing is Mr. Foster seeking a protective order in the face of court ordered discovery, and his making claims of bias on the part of the Court.

Ignoring discovery directives contained in a prior court order can constitute frivolous conduct under 22 NYCRR 130-1.1 [c], (Wesche v Wesche, 51 AD3d 909 [2d Dept 2008]). While it is true that the bringing of this motion automatically suspended disclosure pending the determination of the application for a protective order, it does not in any way immunize Mr. Foster from the consequences of bringing a last minute motion to avoid court ordered disclosure (see Laverne v Incorporated Vil. Of Laurel Hollow, 18 NY2d 635 [1966]; Spancrete Northeast, Inc. v Travelers Indemnity Company, 99 AD2d 623 [3rd Dept 1984], last minute motion for protective order to avoid scheduled disclosure warranted serious sanctions).

Sanctions may be imposed against an attorney for making baseless accusations of bias on the part of a court (Matter of Winston, 243 AD2d 638 [2d Dept 1997]). Movant, "strongly recommended that this Court disclose whatever personal, social, financial, or political ties she or any person with a personal, social, financial, or political tie to her, has with the Cean Owens Law Firm, LLC or any of its members, or with anyone who has personal, social, financial, or political ties to the Cean Owens Law Firm, LLC or any of its members". Mr. Foster's alleged basis for requesting same is contained in his affirmation in support of the motion at paragraphs 71-73:

71. From the first time that this matter appeared on the

calendar on October 1, 2009, it appeared that there was a

prior relationship between the Court and either Ms. Cean [*4]

or with the Cean Owens Law Firm, LLC. Exhibit A ^[FN3]

72. Nothing that has occurred since has changed said impression.

73. In fact, the Court has seemed not to be an impartial arbiter

but as an agent of Ms. Cean and her firm.

Mr. Foster, who as an attorney is an officer of the court, shall explain the good faith basis for affirming under penalties of perjury, and certifying pursuant to NYCRR 130-1.1-a ^[FN4] , that the Court was acting as the agent of his adversary.

The Court will give notice as to the date and time of the sanctions hearing following the conclusion of this complusory accounting proceeding.

Paul Forster's examination pursuant to SCPA 2211(a) shall be conducted at the Surrogate's Court, in Room 329, on October 7, 2010, by all appearing parties, at 12 p.m.

This constitutes the decision and order of the Court.The clerk of the court is directed to serve a copy of this Decision/Order upon all counsel and both fiduciaries by regular mail.

__________________

Dated:Brooklyn, New YorkHon. Diana A. Johnson

September 13, 2010.Surrogate