In this probate proceeding objectants move for an order directing a commission to take the deposition of a non-party who resides out of state (CPLR 3108).

The witness sought to be deposed is a pharmacist in Florida who dispensed medications to decedent as directed in prescriptions signed by a physician. She is also a stepdaughter of decedent. On the motion, objectants state that they seek to depose the witness for the purpose of discovery of information is support of their allegation of lack of testamentary capacity. The allegations appear to be that the medicines were for the treatment of dementia and/or that the medicines created side effects.

Petitioners contend that the decedent's medical records have already been furnished to objectants and that the identification of the medications can be accomplished through a review of the physicians' records and copies of the prescriptions.

Where disclosure is sought from a non-party it is not necessary to establish special circumstances (Kooper v Kooper, 74 AD3d 6 [2d Dept 2010]).

Generally, the test for disclosure is based upon usefulness and reason (Accent Collections, Inc. v Cappelli Enters, 84 AD3d 1283 [2d Dept 2011]. As to disclosure from a nonparty it must also be established that the information is unavailable from other sources (Conte v County of Nassau, 87 AD3d 558 [2d Dept 2011]). [*2]

The testimony of the pharmacist is not necessary to identify the medications which were prescribed (cf Matter of New York County DES Litig., 171 AD2d 119 [lst Dept 1991] [where pharmacy records were unavailable]). This is not a case where plaintiff seeks to place the pharmacist's knowledge in issue (see Winters v Alza Corp., 690 F Supp 2d 350 [S.D.NY 2010][and cases cited therein discussing negligence of pharmacy]).

Here, the decedent's physician, not the pharmacist who filled the prescriptions, is the appropriate person to testify regarding the reason for prescribing the medications and the side effects for this particular patient.

The motion for an order directing a commission is denied.

The cross-motion for an order setting a deadline for the completion of discovery is granted to the extent that this matter will appear on the court's calendar on January 21, 2014 at 10:00 a.m. for a scheduling conference.

This is the decision and order of the court.

Dated: December 19, 2013

Edward W. McCarty III

Judge of the

Surrogate's Court