In this contested probate proceeding, the following motions are before the court: (i) objectant Jenna Butner's motion to disqualify Mary Butner as executor on the grounds of self-dealing, conflict of interest and aiding and abetting the looting of the estate and for a stay; (ii) petitioner Mary Butner's cross-motion for summary judgment; and (iii) objectants Jenna Butner and Amanda Butner's motion to quash certain non-party subpoenas. The motions are decided as set forth below.

FACTUAL BACKGROUND

The decedent, Barry Butner, died on November 22, 2010. At the time of his death, the decedent was married to the petitioner, Mary Butner, and had two children from his first marriage, the objectants, Amanda Butner and Jenna Butner. A purported will dated September 16, 2010 has been offered for probate. The purported will leaves the decedent's entire estate to Mary in the event she survives him, or if she did not survive him, equally to Amanda and Jenna (decedent's children) and Kathryn and James (Mary's children). Mary is nominated as executor. Amanda and Jenna originally filed objections to the will, totaling forty-eight in number; however, they later amended the objections contending that the will was not duly executed, that the decedent lacked the capacity to execute a will at the time of its purported execution, and that if it was, in fact, executed by the decedent, it was as the result of fraud and undue influence having been exerted on the decedent by Mary.

The decedent divorced his first wife, Sue, in 1993 and married Mary, his aerobics instructor, in 1995. Mary had two children of her own, James and Kathryn, who lived with the decedent and Mary after they were married. It is undisputed that Mary, Jenna and Amanda did not get along and that this was the source of grave stress and concern for the decedent, although there is disagreement as to who was responsible for the animus. Mary portrays Jenna and [*2]Amanda as spoiled disgruntled children who used their father for financial support. She alleges that Amanda and Jenna did not speak to the decedent for eight months prior to his cancer diagnosis. In fact, Mary claims that the decedent's relationship with his daughters was so problematic that he made his stepson, James, a 1% partner in his professional counseling practice and not his daughter Amanda who is also a licensed social worker. According to Mary, she and the decedent executed wills on July 5, 2000. After the decedent was diagnosed with cancer, he attempted to locate his original will but was unsuccessful. The decedent spoke to his financial adviser and accountant Alan Steinbach, who has submitted an affidavit on Mary's behalf stating that the decedent was frequently wounded by his daughters' treatment of him and expressed to him that he intended to leave his assets exclusively to Mary. The decedent's friend, Nizar Orthman, also spoke with the decedent about his "business options' and "republishing" his 2000 will which he could not locate. Mr. Orthman, who was the Billing Manager for the decedent's businesses, provided a reference to The Gilbert Firm for a legal consultation, and he arranged a meeting, at the decedent's request, for an introductory consultation to take place on September 13, 2010.

There is testimony that on September 13, 2010, the decedent went to The Gilbert Firm for a consultation during which he requested Vivienne Gilbert, Esq. to "supervise the republication" of his July 5, 2000 will prepared by another attorney, Kathleen Birmingham-Petrello, Esq. Vivienne Gilbert testified at her SCPA 1404 examination that she received a copy of the 2000 will by fax and that the decedent advised her that he "merely sought to republish and re-execute his July 5, 2000 will." The decedent told Ms. Gilbert that he intended to leave all of his assets to Mary and that he had provided amply for his daughters during his life and confirmed that he did not wish to provide any additional bequests to Amanda and Jenna. The meeting lasted three hours. During the meeting, Mary, her son James, and Nizar Orthman were also present. Ms. Gilbert testified that Mr. Orthman had previously referred clients to The Gilbert Firm.

The decedent arrived back at The Gilbert Firm's office on September 16, 2010, alone, and told Ms. Gilbert that he was en route to meet Mary for their weekend trip to Niagra Falls. The decedent reviewed the draft document, and, after he completed his review, Ms. Gilbert instructed the firm's paralegal Adam Blockton to prepare a final version on better quality paper. Mr. Blockton did so and was then asked to remain to act as a witness. Decedent confirmed that it was his will and asked Mr. Blockton and Ms. Gilbert to witness his signature. The decedent signed the instrument and the witnesses signed as well.

The witnesses also signed an affidavit attesting to having witnessed the will. The will consisted of four pages, plus a fifth page entitled "Affidavit of Witness," which after signing were stapled together at the top of the document. Ms. Gilbert testified that after she bound and copied the original she noticed that neither she nor Mr. Blockton had inserted their names and addresses at the top of the affidavit so they inserted the information.

Amanda and Jenna allege that the decedent was unable to refuse Mary and was too weak to resist her demands. They assert that the decedent had a close and loving relationship with them, which he carried out in secret so as not to incur Mary's wrath. According to Jenna and Amanda, Mary exercised complete control over both the decedent's financial and social life. The objectants contend that the will was prepared by an attorney, whom the decedent did not know, but was recommended by Mary "through a mutual friend." Amanda and Jenna have [*3]submitted their own affidavits, and the affidavits of Amanda's husband, Andrew Diakiwski, Rachel Kirschbaum, a family friend, Steven Rosen, the decedent's best friend, and Alisa Ann Sherman, the psychotherapist who treated the decedent and his daughters.

According to Jenna Butler, Mary changed her father's image. Mary threw out all of the decedent's clothes and made him wear "showy, extravagant clothes." Mary isolated the decedent from spending time with Jenna and Amanda. Jenna states that her father told her he had to go along with Mary's wishes because he wanted to make peace and not have any contention with Mary. Mary did not allow the decedent to have any pictures of Amanda in the house. Jenna "was not permitted to visit" the decedent at the house, "except on rare occasions, when [she] was not allowed to be alone with him." Thereafter, she met her father secretly. After Jenna turned 21 Mary would not allow the decedent to pay for Jenna's medical school expenses. The decedent told Jenna that he would find a way to pay her loans off, since he was proud that she was a doctor. The decedent secretly helped Amanda financially. She described her father essentially as a "puppet." Although Jenna is a doctor, Mary advised the hospital staff not to tell Jenna or Amanda any information about their father and their names were documented with the nursing staff. A week or two before the decedent died, Jenna was allowed to visit the decedent in his bedroom. Mary was not home, but her brother, James Conwell, was in the house. The decedent purportedly told Jenna he had made arrangements to pay off her student loans.

Amanda states that Mary isolated her father from them and others. Mary instructed her father's childhood friend to stay away from the decedent. Amanda states that she and Jenna had to meet their father secretly, although he called Amanda every day from work. Amanda believes Mary was listening in on the calls. Eventually, the decedent got a cell phone; however, if Amanda called him, he said he would "call back when [he] was allowed." Amanda recounts one phone conversation when Mary picked up the phone and told Amanda "that she controls everything; that it is hers; that [Amanda] won't have a piece of anything," When Mary was away, the girls would go to the clubhouse and play tennis with their father. Their father gave them the password to the gated community, but when Mary found out what he had done, she changed the password. When the decedent was dying, at his request, Jenna and Amanda were allowed to visit him in his home. He told them that he needed Mary's help so there was nothing he could do. Amanda suffers from Lyme disease and is unable to work so her father assisted her by finding her an apartment. The decedent would also give her money from time to time, but not in front of Mary. The decedent recommended patients to Amanda's husband, Andrew, and when Mary found out, she stopped the referrals. Mary threatened to have Andrew arrested. According to Amanda, the decedent told Andrew that he would to continue to get referrals from the decedent's businesses. James was present during this conversation, and he agreed to honor the decedent's promise, but has failed to do so. In October of 2010 at North Shore University Hospital, the decedent told Amanda he had a will and that she and Jenna were taken care of.

Amanda states that Mary was giving the decedent Xanax and Mary and Jimmy told her the decedent was having hallucinations. Amanda also states that her father had Ativan and Oxycodone in the house.

Jenna and Amanda have submitted an affidavit from Steven Rosen, who was the decedent's friend for 35 years. Mr. Rosen states that the decedent loved his children and felt caught in the middle between Mary and his children. The decedent was unable to see his [*4]children because of Mary's desires and his refusal to stand up to her. Alisa Ann Sherman, a licensed clinical social worker, who worked with the decedent individually and as family therapist, has submitted an affidavit asserting that the decedent was very worried about the relationship between Mary and his children. It was a source of stress, tension and unhappiness for him and, in her opinion, he would make decisions to reduce or avoid conflict with Mary, even to the point of doing things he did not want to otherwise do. Amanda's husband, Andrew D. Diakiwski, has submitted an affidavit in which he states that the decedent told him Mary would not permit Amanda inside his home. If Mary called the decedent when he was with Amanda and Andrew, the decedent put his finger over his mouth signaling they should be quiet so Mary wouldn't hear them. The decedent also told Andrew that Amanda and Jenna were being taken care of in his will. Amanda's friend, Rachel Kirschbaum, states that she saw the decedent's "helplessness in the face of Mary's abuse of his children."

With respect to the affidavits from Nizar Orthman and Alan Steinbach which Mary has submitted in connection with her cross-motion, Jenna and Amanda point out that, as the Billing Manager, Mr. Orthman works very closely with Mary and James. In addition, Amanda and Jenna have annexed to their opposition papers a complaint filed in the Federal Court for the Eastern District of New York evidencing that Mr. Steinbach was charged with making a false statement and a judgment was issued against him. They also point out that Mary has failed to submit her own affidavit.

Jenna and Amanda also argue that the decedent was fraudulently induced into making the purported will based upon a false statement by Mary. Mary originally testified that she told the decedent that, as part of a plan, she was going to make a will leaving her entire estate to him, and, if he predeceased her, to all of their children equally. At her deposition, Mary testified that she felt bound by that representation. "Immediately thereafter the attorney improperly made statements to her client on the record and Mary then stated anybody can change their will at any time.'" Jenna and Amanda argue that Mary's promise to leave her estate to all of their children equally induced the decedent to execute the purported will. Even though Mary later altered her answer on the errata sheet, Jenna and Amanda argue that there is an issue regarding her credibility which therefore precludes summary judgment. Jenna and Amanda claim that Mary unduly influenced the decedent to sign the purported will because he was dependent on her and fearful of going against her due to the control she exercised over him and his businesses.

MOTION TO DISQUALIFY

Jenna, not Amanda, moves to disqualify Mary as executor or preliminary executor on the grounds of self-dealing, conflict of interest and aiding and abetting the looting of assets of the estate. According to Jenna, she has filed a petition for limited letters of administration to commence a discovery proceeding under SCPA 2103 against Mary. Jenna alleges that Mary has "secretly formed a corporation with her son from a prior marriage." The new corporation has a name virtually the same as decedent's companies. Jenna alleges that "Mary Butner, together with her son, James Hickey, and Karen Sabbeth, the manager of one office locations [sic] of decedent's business, is transferring income, assets, customers and goodwill from the estate business to the new business, which they formed or are participating in." Mary is the general manager of all of the decedent's business locations. Jenna claims that Mary is secretly diverting the assets of the estate to a new corporation while claiming that the old corporation has no value. [*5]

Mary's counsel disputes the allegations and argues that she is simply attempting to keep things running smoothly.

A testator's wishes regarding the appointment of a fiduciary will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing (Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6 [Sur Ct, Nassau County]); Matter of Schill, NYLJ, Mar. 15, 2000, at 30, col 2 [Sur Ct, Nassau County]; Matter of Fordman, NYLJ, Dec. 16, 1998, at 22, col 6 [Sur Ct, Bronx County]; Matter of Fruchtman, NYLJ, Nov. 28, 1997 at 35, col 1 [Sur Ct, Kings County]). Courts will not lightly set aside a decedent's choice of fiduciary (Matter of Mecko, 70 NYS2d 41 [Sur Ct, Broome County 1947]). A"[d]ecedent's selection of a fiduciary must be given great deference and the power of the court to deny the issuance of letters to a nominated fiduciary is strictly circumscribed by statute. Courts should nullify a testator's choice only upon a clear showing of serious misconduct that endangers the safety of the estate. Unless the nominated fiduciary is disqualified under SCPA 707, he cannot be denied letters" (Matter of Cruz, NYLJ, Sept. 15, 2009 at 38, col 2 [Sur Ct, Kings County]).

The removal of a fiduciary is a matter within the discretion of the court (Stolz v New York Central R.R. Co., 7 NY2d 269 [1959]). Courts exercise this discretion only rarely, especially where they are called upon to remove a fiduciary chosen by the testator. In general, courts are reluctant to interfere with a testator's wishes regarding selection of a fiduciary. Thus, a court may "judicially nullify" the testator's choice of fiduciary "only upon a clear showing of serious misconduct that endangers the welfare of the estate; it is not every breach of fiduciary duty that will warrant removal of an executor" (Matter of Duke, 87 NY2d 465, 474 [1996] citing Matter of Israel, 64 Misc 2d 1035 [Sur Ct, Nassau County 1970]; Matter of Leland, 219 NY 387, 392 [1916]; Matter of Braloff, 3 AD2d 912 [2d Dept 1957], affd 4 NY2d 847 [1958]).

Here, the conclusory allegations are insufficient to warrant the disregard of the testator's wishes and disqualify Mary at this time. The proper recourse is for the issuance of limited letters of administration to commence an SCPA 2103 discovery proceeding against Mary and/or others. It appears that Jenna has made such an application; however, the proceeding has been delayed by the difficulties she has encountered in serving Mary who lives in a gated community and, apparently, refuses to accept service. Mary's counsel has similarly, at conferences before the court, refused to accept service on Mary's behalf. Jenna should, therefore, submit an affidavit from the process server detailing the efforts made to serve Mary, together with an order for substituted service.

Accordingly, the motion to disqualify Mary is denied.

MOTION FOR SUMMARY JUDGMENT

Summary judgment may be granted only when it is clear that no triable issue of fact exists (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). If [*6]there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).

If the moving party meets his or her burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his or her proof (see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Prudential Home Mtge. Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).

Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding testamentary capacity, the due execution of the will, undue influence, or fraud (see e.g. Matter of DeMarinis, 294 AD2d 436 [2d Dept 2002]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]).

The objectants' attorney claims that the proponent's cross-motion papers are fatally defective because they were submitted without an attached affidavit by the will's proponent. The Second Department has held that, "[o]n a motion for summary judgment, a bare affirmation of an attorney, who demonstrates no personal knowledge of the matter, is unavailing and without evidentiary value" (Winter v Black, 95 AD3d 1208 [2d Dept 2012] citing Bahlkow v Greenberg, 185 AD2d 829 [2d Dept 1992]. However, in this case, the proponent did not submit a "bare affirmation." In her initial cross-motion papers, the proponent cited deposition testimony from the objectants and witnesses with personal knowledge of the preparation and execution of the exhibits in her motion papers. According to the New York State Court of Appeals, supporting proof does not need to be offered to the court by means of affidavits of fact on personal knowledge. Rather, proof may be submitted to the court by an attorney's affidavit which presents deposition testimony (see Olan v Farrell Liens, Inc., 64 NY2d 1092 [1984]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The court therefore finds that the proponent's cross-motion papers are not fatally defective.

In addition, testimony barred by the Deadman's Statute (CPLR 4519) is admissible for purposes of defeating a summary judgment motion where there is some supportive admissible evidence (Tancredi v Mannino, 75 AD2d 579 [2d Dept 1990]). Here, there is deposition testimony offered by Jenna and Amanda in opposition to the cross-motion.

As indicated above, the will's execution was supervised by an attorney giving rise to an inference that the statutory requirements have been met. Coupled with the testimony of the two attesting witnesses regarding the execution ceremony, the proponent has made out a prima facie case for summary judgment on the issue of due execution. In opposition, the objectants have raised the following irregularities which they claim affect the integrity of the execution itself.According to the objectants, the will was not stapled when it was presented to the decedent for signature. In addition, there were no page numbers on the will. Most importantly, they note that the attestation clause of the will recites that the decedent placed his initials on each page, which, in fact, did not occur. Moreover, Vivienne Gilbert acknowledged that she noticed missing information on the Affidavit of Witness, which was completed by her and the other witness after the will and affidavit were bound. These irregularities raise an issue of fact as to due execution. Accordingly, the branch of the motion seeking to dismiss the objection on due execution is denied.

The proponent also has the burden of proving testamentary capacity. It is essential that a testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty (see Matter of Kumstar, 66 NY2d 691[1985]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]). A testator must understand the plan and effect of the will and less mental faculty is required to execute a will than any other instrument (see Matter of Coddington, 281 App Div 143 [3rd Dept 1952], affd 307 NY 181[1954]). Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and do not preclude a finding thereof (see Matter of Fiumara, 47 NY2d 845, 847 [1979]; Matter of Hedges, 100 AD2d 846 [2d Dept 1984]) as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made (see Matter of Hedges, 100 AD2d 846 [2d Dept 1984]). "When there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury" (Matter of Kumstar, 66 NY2d 691, 692 [1985]). "One may be able to make a valid will though afflicted with a fatal disease, or possessing an imperfect mind or memory. A will may not be rejected simply because the testator does not make it until near death, or because he is ill or weak" (3 Warren's Heaton on Surrogate's Court Practice § 42.06 [1], at 42-93 [7th ed] ).

In this case, the record establishes that the decedent was diagnosed with cancer and was physically weak. The testimony of the attesting witnesses is that the decedent was of sound mind and memory on the date of the will's execution. Although Amanda states that her father took Zanax which caused him to hallucinate, there is no evidence of any cognitive defect. The court is satisfied that the proponent has made out a prima facie case for summary judgment on the issue of testamentary capacity and the objectants have failed to raise a triable issue of fact. Accordingly, the branch of the motion to dismiss the objection for lack of testamentary capacity is granted.

The objectants bear the burden of proof on the separate issues of fraud and undue influence (see Matter of Gross, 242 AD2d 333 [2d Dept 1997]; Matter of Burke, 82 AD2d 260 [*8][2d Dept 1981]). To prove fraud, the contestants must show by clear and convincing evidence that a false statement was made to the testator that induced him to make a will disposing of his property differently than he would have if he had not heard the fraudulent statement (see Matter of Gross, 242 AD2d 333 [2d Dept 1997]).

In order to prove undue influence, the contestants must show; (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed (cf., Matter of Walther, 6 NY2d 49 [1959]). Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of his will, his family relations, the condition of his health and mind and a variety of other factors such as the opportunity to exercise such influence (see generally, 2 NY PJI 7:55). It is seldom practiced openly but it is the product of persistent and subtle suggestion imposed upon a testator fostered by the exploitation of a relationship of trust and confidence (Matter of Burke, 82 AD2d 260 [2d Dept 1981]). Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient (see Matter of Chiurazzi, 296 AD2d 406 [2d Dept 2002]; Matter of Herman, 289 AD2d 239 [2d Dept 2001]).

Here, Mary had both motive and opportunity to exercise undue influence on the decedent. There is testimony that from the time the decedent married Mary he was concerned about conflict with Mary and would act in ways to minimize or eliminate such conflict. The decedent's friend and family therapist both state that the decedent expressed to them that he had difficulty standing up to Mary. The description of "secret meetings" with his daughters is some evidence of Mary's exertion of influence on the decedent's mind. The decedent stated to Amanda that he needed Mary to help him and could not go against her. The record establishes that there was tremendous animus between Mary and the objectants which had a significant impact on the decedent's emotional state. In addition, Mary, James and Mr. Orthman were all present at the initial meeting, and Mr. Orthman recommended The Gilbert Firm despite Mary's claim the decedent was just "republishing" a will drafted by another attorney.

In addition, as to fraud, the objectants argue that Mary's false statement that if the decedent predeceased her and left everything to her she would provide in her will that upon her death everything would be distributed equally to their four children induced decedent to execute the purported will leaving everything to Mary. At her deposition, Mary, allegedly with prompting from her counsel, went back on her answer. In any event, her testimony is sufficient to raise an issue of fact as to fraud. Accordingly, the branches of the motion seeking summary judgment on the issues of fraud and undue influence are denied.

THE MOTION TO QUASH

The objectants move for a protective order and to quash subpoenas served upon two non-party witnesses, Alisa Sherman and Steven Rosen. The motion is made on the basis that:

1. The subpoenas were served by petitioner after she filed a cross-motion for summary judgment, which stayed discovery.

2. No notice of deposition was served with the subpoena and less than the twenty-day statutory notice was given to each of the witnesses. [*9]

3. Neither witness received the statutory witness fee.

4. The subpoenas improperly indicated that the witness should contact petitioner's counsel to discuss the matter.

5. With respect to information requested from Alisa Sherman, the therapist, regarding individual therapy for Amanda or Jenna, the information is privileged under CPLR 4508.

In response, petitioner's counsel argues that the subpoenas were served after the affidavits were offered in opposition to the summary judgment motion as a part of a "good faith basis to examine the substance of objectant's new evidence." Petitioner's counsel claims that the stay on discovery was lifted at a conference when she was permitted to put in a reply to the opposition. She contends that she was given "time to explore objectants Non-Party's [sic] witnesses evidence." Moreover, counsel argues that objectants' counsel has no standing to move to quash service of subpoenas on non-party witnesses whom he does not represent. As to the issue of privilege, the petitioner argues that the objectants and Ms. Sherman have placed the substance of the therapeutic care granted to the decedent in issue and have waived the privilege.

Petitioner's counsel incorrectly recounts the substance of the court conference. Permission to file a reply with respect to the objectants' opposition to the cross- motion for summary judgment did not constitute a lifting of the stay of discovery pending a determination on the summary judgment cross-motion. The service of the subpoenas was improper while the cross-motion was pending. Counsel has consistently shown a flagrant disregard for procedural rules during this proceeding. Such behavior will not be countenanced. In fact, this court's prior decision dated December 20, 2011 (Dec. No. 27608), noted petitioner's counsel's disruptive and inappropriate behavior during the depositions of Ms. Gilbert and Mary. This court stated as follows:" [p]etitioner's counsel is admonished to conduct herself at the deposition in accordance with the applicable rules, or face imposition of financial sanctions."

Concerning the subpoena issued to Ms. Sherman, the objectants have not placed their individual therapeutic care in issue or waived any privilege in connection therewith. The decedent's therapeutic care is relevant to the issues of fraud and undue influence. The individual care rendered to the objectants is irrelevant.

Moreover, the subpoenas are defective as no notice was given stating the circumstances or reasons such disclosure is sought (CPLR 3101[a] [4]).

The motion to quash is granted.

A conference shall be held on July 23, 2013 at 9:30 a.m. to reschedule any remaining discovery and to schedule the depositions of non-party witnesses to the extent they are under the control of a party.

In summary, the motion to disqualify Mary is denied in its entirety; the cross-motion for summary judgment is granted on the issue of testamentary capacity only and is denied in all other respects; and the motion to quash is granted.

Settle order.

Dated:June 28, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court