In this contested accounting proceeding, the petitioning executor J. Philip Max moves for an order compelling objectant Jonathan Max to answer interrogatories and comply with a written document demand dated November 22, 2013. The motion is opposed and decided as set forth herein.

Since the filing of the account and the petition to settle filed in 2011, these proceedings have been mired in vituperative paper exchanges between counsel for the parties and this motion is no different. Some factual backdrop is recited in the court's prior decisions [Nos. 28302 and 28955] and need not be repeated here. Finally at the tail end of objectant's SCPA/CPLR discovery of petitioner, the executor began discovery of the respondent by the service of interrogatories dated November 7, 2013 and a demand for the production of documents dated November 22, 2013. Appropriate answers to the former were not forthcoming [a letter from counsel was sent]. A timely response to the document demand was made on December 13, 2013 which consists of general and specific objections and the response "NONE" as to items ## 2 and 3. It does not appear that any documents themselves were produced.

Of the 9 numbered items of the affirmation in opposition to the motion there is this single germane statement: "What executor seeks in discovery has nothing to do with his

accounting . . . ."

Disclosure in New York civil actions is guided by the principle of "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]). The [*2]words "material and necessary" are "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968] [internal quotation marks omitted] see Tower Ins. Co. of NY v Murello, 68 AD3d 977 [2d Dept 2009]) The Court of Appeals' interpretation of "material and necessary" in Allen 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).

The interrogatories are 41 in number. The first 36 are identical in seeking the name, address and telephone numbers of witnesses and in so doing each cross-references a numbered paragraph of the amended objections. A summary of all the potential witnesses' testimony is demanded. Items #37, #38, #39, and #40 ask for the basis of claims or portions of claims alleged in the designated numbered paragraphs of the amended objections; No.41 asks for particularization of the allegations, if there are any, of assistance objectant rendered to decedent.

The document demand has three other items besides ##2 and 3 above referenced: #1 seeks ostensibly paperwork supporting certain numbered paragraphs of the amended objections; #4 seeks correspondence from or to decedent ; #5 seeks copies of deeds to 1492 East 17th Street, Brooklyn, New York.

This court cannot let pass objectant's above-quoted opposing statement without the observation that the discovery sought by the executor is directly related to the issues raised by respondent in his amended objections. That said, the motion is decided as follows:

As regards the interrogatories, while seeking the identity of witnesses in this fashion may be unorthodox, it is not improper. The demand for a summary of the testimony, however, is baseless and is stricken. #41 is too speculative and is stricken as such. The factual underpinning for claims or portions thereof sought in ##37 through 40 is warranted.

As regards the document demand, #1 is stricken as lacking of the requisite specificity;

#4 is relevant and warranted; #5 appears to seek titles for objectant's residence which has no apparent relevance to the accounting and is also stricken.

It should be noted that a party cannot be compelled to produce documents which do not exist or are not in his possession (Euro-Central Corp. v Dalsimer, Inc., 22 AD3d 793 [2d Dept 2005]).

By reason of the foregoing, the court grants the following relief on the motion: within twenty (20) days from service of a copy hereof, objectant is directed to comply with both the demand for documents and answer the interrogatories [consistent with the requirements of CPLR 3133], as modified herein, and further to supply an affidavit that he has no documents in his possession, custody, or control as of its date responsive to ## 2 and 3 of the document demand.

This constitutes the decision and order of this court.

Dated: March 31, 2014 [*3]

EDWARD W. McCARTY III

Judge of the

Surrogate's Court