Surrogate Rita Mella
Petitioner Gutierrez sought delivery of his personal property he alleged was in decedent’s home at the time of his death. Executor Berlin, decedent’s sister, moved to dismiss this reverse discovery petition. Decedent’s will left, among other things, certain bequests to Gutierrez, who alleged he had many personal items in decedent’s apartment, thus sought a “walk-through,” and turnover of various items. Berlin argued there was no statutory authority to permit a walk-through, and alleged Gutierrez abandoned the property, among other things. The court granted Berlin’s motion to dismiss the petition based on a failure to state a cause of action for reverse discovery under Surrogate’s Court Procedure Act §2105 on the portion seeking to walk-through decedent’s apartment to identify property that may belong to Gutierrez. It stated such relief was unavailable under any statutory or decisional law, nor was it a discovery device to which Gutierrez was entitled under Article 31 of the CPLR. Thus, dismissal of the petition seeking turnover of assets not specified in the petition, but which petitioner alleged he could identify during a walk-through of decedent’s apartment was denied.
