In the context of a probate proceeding, before this court are ^[FN1]:

(1) An order to show cause, filed by Carole Gagliano, in which she asks the court to (a) suspend the preliminary letters testamentary issued July 26, 2013 to Joan F. Levine and David Lewis and (b) enjoin Joan F. Levine and David Lewis from taking any action as executors of the estate of Camille Lewis, including proceeding with the contract of sale for the decedent's property located at 12 Market Lane, Great Neck, New York.^[FN2]

(2) A motion filed by Carole Gagliano to compel discovery.

(3) A cross-motion filed by Joan F. Levine and David Lewis for an order pursuant to CPLR 3212 (a) granting summary judgment in their favor, (b) dismissing Carole Gagliano's [*2]objections to their petition for letters testamentary, (c) admitting the last will and testament of Camille J. Lewis dated May 16, 2002 to probate, and (d) denying Carole Gagliano's motion to compel discovery.

(4) An application filed by Joan F. Levine and David Lewis to extend preliminary letters testamentary issued to them by this court.^[FN3]

Camille J. Lewis (the "decedent") died on May 5, 2013, survived by her three children, Carole Gagliano, Joan F. Levine and David Lewis ("Carole," "Joan," and "David"). Decedent left a will dated May 16, 2002, in which she left her residuary estate to her three children in equal shares. Decedent nominated Joan and David to serve as co-executors.

Joan and David filed a petition for probate and letters testamentary. On the citation return date, Carole indicated that she would object to the appointment of Joan and David as co-executors, although not to the probate of decedent's will.

Joan and David then filed a petition, on notice to Carole, for preliminary letters testamentary. Preliminary letters were issued on July 26, 2013.

On August 26, 2013, Carole filed objections to the petition for letters testamentary filed by Joan and David.

Carole filed a motion on September 30, 2013 to compel disclosure by Joan and David, and to compel them to serve full and complete responses to the discovery demands made by her.

On October 3, 2013, the preliminary executors entered into a contract of sale for decedent's home and Carole filed an order to show cause to suspend the preliminary letters issued to Joan and David and enjoin them from taking action as the executors of decedent's estate.

On October 25, 2013, Joan and David filed a cross-motion in opposition to Carole's motion to compel disclosure, asking the court to grant summary judgment in their favor, dismiss Carole's objections to the petition for letters testamentary, appoint the nominated co-executors, admit the proffered will to probate, and deny the motion to compel discovery.

The court heard oral argument in connection with the order to show cause on November 27, 2013.

On January 16, 2014, Joan and David filed an application to extend their preliminary letters testamentary. On February 6, 2014, Carole's attorney filed an affirmation in opposition to that application, and on February 11, 2014, counsel for Joan and David filed a reply affirmation in support of their application.

Carole's (a) order to show cause, (b) motion to compel discovery and opposition to the cross-motion filed by Joan and David, and (c) opposition to Joan and David's application to extend preliminary letters testamentary, are based upon the following allegations concerning Joan and David's conduct, most of which occurred in the weeks immediately following decedent's death:

1. Prior to the issuance of preliminary letters, Joan and David engaged an appraiser, listed decedent's real property for sale, conducted viewings and solicited offers, and began to [*3]negotiate the sale of decedent's residential property. Carole further alleges that Joan and David conducted an estate sale of decedent's personal property.

In response, Joan and David concede that they took some of these steps but refrained from entering into a contract of sale until letters issued. They maintain that everything they undertook prior to the issuance of letters was on notice to Carole and for the sole purpose of preserving the assets of the estate, which was their obligation as nominated executors.^[FN4] With respect to the allegation that they conducted an estate sale of personal property before being appointed as preliminary executors, Joan and David advise the court that Carole is aware that since she refused to consent to a sale prior to letters, they did not proceed with it at that time.

2. By acting as the real estate broker and charging a full six percent commission for the sale, Joan took compensation prohibited as greater than an executor's statutory commission.

In response, Joan asserts that it was Edna Mashaal Realty LLC, with which Joan is affiliated, and not Joan personally, who charged the commission, which Joan subsequently negotiated down to 5%.

3. Joan and David engaged Joan's husband to prepare the real estate contract of sale and conduct the closing, at a fee of $2,500.00.

In response, Joan and David argue that as fiduciaries, they were entitled to engage any attorney of their choosing, and that the fee was reasonable in view of the fact that the legal services included preparation of the probate petition and related documents.

4. Joan asked David to "raid the assets of the estate, specifically, the checking account of the Decedent . . . . "

In this matter, too, Joan and David assert that their actions were open, transparent and for the sole purpose of preserving estate assets by paying taxes owed by decedent prior to the issuance of preliminary letters.

5. Joan and David obtained a power of attorney from decedent in 2008, when decedent was suffering from dementia, and that their actions taken as attorneys-in-fact must be reviewed.

In support of the relief requested in the order to show cause, counsel for Carole cites SCPA 711 (1), which states that the court may suspend or revoke letters where the appointed party is "ineligible or disqualified to act as fiduciary and the grounds of the objection did not exist . . . before the letters were granted." Counsel also cites SCPA 711 (8), which provides for the suspension or revocation of letters where the fiduciary "does not possess the qualifications required . . . by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office." Counsel asserts that these are the grounds set forth in the objections to the appointment of Joan and David as co-executors, which objections have not yet been ruled upon. He also cites SCPA 719 (10), which allows for the suspension or removal of a fiduciary without process where any of the facts listed in SCPA 711 are brought to the attention of the court.

In support of Carole's opposition to Joan and David's application for an extension of preliminary letters testamentary, counsel for Carole argues that the main issue to be determined by the court is the best interest of the estate, and that extending preliminary letters to Joan and [*4]David would not be in the estate's best interest. Counsel also claims that the hostility between his client and the preliminary executors should preclude the court's extending the letters.

Counsel for Joan and David argues that Carole has not filed any probative evidence that Joan and David are not qualified to act as full executors or preliminary executors. Counsel notes that the objections to the petition for the extension of preliminary letters cite the same allegations raised in the opposition to the issuance of full letters testamentary as well as in the order to show cause for a temporary restraining order to enjoin the sale of decedent's home, which the court denied. Decedent's real property was sold and the proceeds were deposited into estate accounts. Joan and David filed the New York estate tax return and paid the taxes due. Counsel notes that Joan and David are the nominated executors and they are two of the three named beneficiaries under decedent's will. Counsel argues that Carole has failed to submit any facts to establish that Joan and David are not qualified to act as fiduciaries of decedent's estate. Counsel for Joan and David disputes that the preliminary letters were improperly issued and notes that the application was made on notice to counsel for Carole. It is also argued that although hostility exists between the preliminary executors and Carole, there is no allegation that the hostility, has interfered with the estate administration.

Carole asks the court to (1) suspend the preliminary letters issued to Joan and David and (2) deny their application for an extension of those letters. Joan and David filed an application for an extension of their preliminary letters testamentary.

Preliminary letters testamentary are governed by SCPA 1412, which provides, in relevant part, as follows: "1. Whenever a petition for probate of a will . . . has been filed and process has issued thereon, an executor named in the will may file with the court a written request for the issuance to him of preliminary letters testamentary . . . . "

The court may consider revocation of preliminary letters testamentary, pursuant to SCPA 1412 (6), on the basis of (a) unreasonable delay by the executor in the probate proceeding; (b) any reason for revocation set forth in SCPA 719; or (c) "the best interests of the estate."

Preliminary letters may also be revoked or suspended where the fiduciary's conduct is deemed improvident (See Matter of Edelman, NYLJ, Nov. 19, 2009, at 38, col 6 (Sur Ct, Richmond County). In Edelman, which involved a dispute between two sisters, the court found improvident conduct where the preliminary executor refused to communicate with counsel, refused to cooperate in the sale of decedent's real property while living there without paying rent, and refused to defend the estate in a foreclosure action. The court suspended the preliminary executor's letters and scheduled an immediate hearing because of the urgency of the pending foreclosure action. In another decision, rendered in New York County, which also involved a dispute between two sisters, preliminary letters were suspended pending a hearing on the fiduciary's fitness to serve after the fiduciary admitted making distributions to herself, litigated unreasonably and refused to account (Matter of Taschereau, NYLJ, May 18, 2006, at 27, col 35 [Sur Ct, New York County]). The court particularly noted the fiduciary's lack of understanding concerning her role (id.).

None of the allegations made by Carole concerning actions taken by Joan and David provide a substantive basis for the suspension or removal of the preliminary co-executors, or for the denial of their application to extend the letters. While the court's discretionary power to revoke preliminary letters is broader than its power to revoke full letters testamentary, the court [*5]does not find that the revocation of the preliminary letters issued to Joan and David would be in the best interests of the estate at this time.

Carole seeks to depose Joan and David concerning "potential fiduciary breaches, conflicts of interest, self-dealing and duty of loyalty concerns pertaining to this estate, as well as to their competency and propriety of serving as Executors and fiduciaries" of decedent's estate, and she asks the court to compel Joan and David to serve full and complete responses to the following discovery demands:

1. Copies of decedent's banking and financial statements that were under the control of Joan and/or David (a) while they acted as attorneys-in-fact or (b) after decedent's death.

2. Explanations for withdrawals exceeding $500.00 by Joan and/or David during the time period (a) in which they acted as attorneys-in-fact, or (b) after decedent's death.

3. All documents verifying sales of single-family homes by Joan in the past five years and the commissions earned for each sale.

4. All records of real estate deals and/or closings in which Ira Levine participated, for the sales referenced in Demand #3 above, and the compensation paid to Ira Levine for each such sale in the past five years and after decedent's death.

5. All emails to and/or from Joan and/or David concerning actions taken as fiduciaries while overseeing decedent's accounts as her attorneys-in-fact.

6. All documents verifying and validating the power of attorney granted to Joan and/or David over decedent's accounts.

7. All documents showing the real estate listings, the analysis performed by Joan and/or David to determine the selling price of decedent's home, the three offers received and the brokerage fee.

8. All records of the notification of decedent's death sent to the Social Security Administration, financial institutions, and leasing and mortgage servicing companies which Joan and David were obligated to notify.

Counsel for Carole supports the motion to compel discovery by stating that Joan and David "have failed to comply with their fiduciary obligations." He cites the previously referenced allegations underlying all of the proceedings initiated by his client, namely, that Joan and David listed decedent's property, conducted viewings, solicited and received offers for the property, made decisions concerning real estate brokers and legal representation, used decedent's assets to pay taxes, and were granted a power of attorney by decedent six years ago.

In response, counsel for Joan and David argues that the discovery demands seek the production of documents which are not pertinent to the probate proceeding but which are simply designed to inconvenience and harass Joan and David. If anything, the discovery sought by Carole would address issues to be raised in the context of an executor's account, not a probate proceeding. Through their counsel, Joan and David argue that to the extent that Carole objects to any aspect of their fiduciary conduct, she may raise her objections in the context of a judicial accounting proceeding.

It is well established that New York requires full disclosure of all matter material and necessary in the prosecution or defense of an action (CPLR 3101 [a]). Case law has broadly construed the scope of material that is discoverable, ruling that "the words material and necessary are to be interpreted liberally to require disclosure of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay the test is one of usefulness and reason" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, [*6]406-407 [1968] [internal citations omitted]). The Court of Appeals' interpretation of "material and necessary" has been understood "to mean nothing more or less than relevant'" (Connors, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR C3101:5). Discovery of documents is permitted even if they are not admissible in evidence, provided that the production of such documents may lead to disclosure of admissible evidence (Fell v Presbyterian Hospital in New York at Columbia-Presbyterian Med. Ctr., 98 AD2d 624, 625 [1st Dept 1983]).

Courts have broad discretion in supervising discovery and the setting of reasonable terms and conditions therefor (Matter of U.S. Pioneer Execs. Corp., 47 NY2d 914, 916 [1979] Mattocks v White Motor Corp., 258 AD2d 628, 629 [2d Dept 1999]). Ordinarily if a party objects to a discovery demand, that party is to serve a response that states with reasonable particularity the reasons for each objection. If an objection is made to part of an item or category, the part is to be specified (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3122:1).

If demands are made and disclosure is not provided, CPLR 3124 provides that a party seeking disclosure may bring a motion to compel a response or compliance with the request or demand.

At the same time, "unlimited discovery is not permitted and the supervision of disclosure is generally left to the sound discretion of the trial court" (Matter of Glick, NYLJ, Sept. 21, 2005, at 28, col 1 [Sur Ct, Kings County]). "Disclosure is material and necessary when the facts bearing on the controversy will assist in sharpening the issues and reduce delay in trial preparation" (Matter of Tracy, NYLJ, Jan. 28, 1998, at 3, col 1[Sur Ct, Westchester County]). In a contested probate proceeding, Surrogate Holzman found that a subpoena for records may be quashed only "where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry" (Matter of Rutherford, NYLJ, March 18, 2010, at 36, col 3[Sur Ct, Bronx County] [internal citations and quotation marks omitted]). In Rutherford, the Surrogate went on to note that "[t]he objectants are not entitled to information that is not relevant to the will contest merely because this information might be useful in a future proceeding . . . ." (id.).

None of the information sought by Carole is probative of or relevant to the present inquiry, which is limited to the qualification or disqualification of Joan and David to serve as preliminary and full executors of the decedent's estate. In a decision issued by this court, Surrogate Radigan held that where "[t]he questions posed . . . are irrelevant to these proceedings . . . they are barred by CPLR 3101(a)" (Matter of Slocum, NYLJ, July 27, 1999, at 29, col 3 [Sur Ct, Nassau County] [internal citation omitted]). Accordingly, the motion to compel discovery is denied.

Summary judgment is a drastic remedy (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), awarded only sparingly (Ronder & Ronder, P.C. v Nationwide Abstract Corp., 99 AD2d 608 [3d Dept 1984]), and only when there are clearly no triable issues of fact presented (NBT Bancorp. v Fleet/Norstar Fin. Group, 87 NY2d 614, 625 [1996]). In a proper case, however, the court's granting of a summary judgment motion is not only appropriate, but denial of such a motion is reversible error (Matter of Greenspan, 43 AD2d 998 [3d Dept 1974], affd 36 NY2d 737 [1975]). To prevail on a motion for summary judgment, the [*7]movant must establish his or her right to a directed verdict as a matter of law (Friends of Animals v Assoc. Fur Manufacturers, Inc., 46 NY2d 1065, 1067 [1979]). If the movant meets this threshold, the burden then shifts to the party moved against to lay bare his or her proof in opposition in evidentiary form (Matter of Bank of New York, 43 AD2d 105, 107 [1st Dept 1973], affd 35 NY2d 512 [1974]). The party moved against may not successfully rely merely on conjecture or surmise (Matter of Rosen, 291 AD2d 562 [2d Dept 2002]); a mere hope that somehow or other the objectant will be able to substantiate his or her allegations at trial is insufficient to deny summary judgment to a proponent who has made out a prima facie case (Jones v Surrey Coop. Apts., Inc., 263 AD2d 33 [1st Dept 1999] Kennerly v Campbell Chain Co., 133 AD2d 669 [2d Dept 1987]).

In order to succeed on their motion for summary judgment, Joan and David would have to establish that they are entitled to a directed verdict as a matter of law. For example, if it is clear that the allegations against Joan and David, even if proven, would be insufficient to impact upon their application to extend preliminary letters, as discussed above, or their petition for full letters as co-executors, then the cross-motion of Joan and David for summary judgment in their favor and admitting decedent's will dated May 16, 2002 to probate should be granted.

SCPA 707 limits the categories of persons ineligible to receive letters to infants, incompetents, certain non-domiciliary aliens, felons, and those who lack "the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who [are] otherwise unfit for the execution of office [and] persons ineligible in [the] court's discretion."

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. 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]). 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 . . ." (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]).

Absent from the record before this court is any proof that Joan and David cannot qualify as co-executors of decedent's estate. The allegations of wrongdoing, even if proven, are insufficient under the relevant statutes to warrant the disregard of the testator's wishes and the disqualification of Joan and David. If Carole objects to actions taken by Joan and David, the proper recourse is to seek judicial accountings by Joan and David, if she so chooses, and to raise her objections, if any, to their conduct within the context of those proceedings.

There being no issue of fact concerning the qualifications of Joan and David to serve as co-executors of decedent's estate, Joan and David's motion for summary judgment is granted; the objections to the appointment of Joan and David are dismissed. [*8]

A decree may be entered admitting the propounded instrument to probate. Letters will issue to Joan and David upon their duly qualifying.

Settle decree.

Dated:March 28, 2014

EDWARD W. McCARTY III

Judge of the

Surrogate's Court