Objectants move for an order, pursuant to CPLR §3103, quashing and denying the petitioners' demand for documents.

SCPA §102 states "[t]he CPLR and other laws applicable to practice and procedure apply in the surrogate's court except where other procedure is provided by this act.

The CPLR "requires the disclosure of all evidence relevant to the case and all information reasonably calculated to lead to relevant evidence" (Siegel, NY Prac §344 [5th ed. 2013]). Nonetheless, the court has discretion to limit disclosure and issue a protective order to prevent "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" (CPLR §3103[a] Pomeranz v Pomeranz, 99 AD2d 407 [1st Dept 1984]).

Objectants allege that petitioners' demand for the production of documents calls for the production of documents which "are irrelevant to the objections made to [*2]the probate of the propounded instrument and equally irrelevant to the petitioners' prima facie case for admission of the instrument to probate." Petitioners' first demand for production of documents, dated January 24, 2014, seeks the production of mortgage documents, promissory notes, information concerning financial transactions made by or on behalf of Michael A. DiChiaro, all documents and correspondence concerning Michael or his wife's actions taken under a power of attorney and Michael's telephone records from November 1, 2011 to January 31, 2012.

The discovery requested seeks to examine objectant Michael A. DiChiaro's management of investments, assumedly in relation to the ninth article of the propounded instrument, the in terrorem clause. At the current stage of this litigation, this demand for the production of documents is premature. The Surrogate's Court may not construe an instrument, particularly an in terrorem clause therein, prior to its admission to probate (see Matter of Zurkow, 74 Misc 2d 736 [Sur Ct, New York County 1973]). Assuming arguendo that this request for the production of documents was not related to the in terrorem clause, the request is still largely irrelevant to the objections set forth by the movant, i.e. (1) the court lacks jurisdiction; (2) revocation; (3) lack of due execution; (4) lack of capacity; (5) duress and undue influence; and (6) fraud (see generally Hoyt v. Hoyt, 307 AD2d 621 [3rd Dept 2003]).

Accordingly, the motion for a protective order is granted to the extent that petitioners' first demand for production of documents is stricken pursuant to CPLR §3103(a).

The foregoing constitutes the decision of the court. Counsel for the objectants is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.

Dated:May 12, 2014

Poughkeepsie, New York

ENTER

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HON. JAMES D. PAGONES, S.C.J.