Frances Asch (hereinafter “Decedent”) died on December 18, 2012 survived by two daughters, Laura Solomon (hereinafter also referred to as “Petitioner”) and Audrey Silverstein (hereinafter also referred to as “Respondent”). Before the Court is an “Affirmation in Support of the Instant Motion for Re-Deposition of the Respondent” filed on January 31, 2018 by the Petitioner seeking to compel the Respondent to answer 26 questions that Respondent’s counsel objected to the Respondent answering during her five day deposition. A “Notice of Cross Motion For a Protective Order Pursuant to CPLR 3103(a) and 3113(b)” was filed by the Respondent on March 19, 2018, in which the Respondent seeks to preclude any and all questions from being answered based on various reasons. A “Reply Affirmation in Further Support of the Instant Motion for Re-deposition and Opposition to Respondent’s Cross-Motion” was filed on April 10, 2018 by the Petitioner, in which she replies to the cross motion and again emphasizes her reasons for wanting the questions answered. Finally, an “Affirmation in Further Opposition to Motion to Compel Re-Deposition and in Further Support of Cross Motion for Protective Order” was filed on May 21, 2018, in which the Respondent responds to the previous papers filed, as well as, seeking the additional relief of referring Yevgeny Rabinovich to the Office of the District Attorney of Richmond County for two instances of alleged perjury regarding filed affidavits of services.It is clear that this matter has a long and tortured history, spanning over five years. The facts and history of this case will not be recited for the sake of brevity and because they have been addressed countless times in previous decisions and orders of this Court. Rather, this decision will simply address each of the 24 questions that the Petitioner seeks to ask and which the Respondent seeks to preclude (while the parties state there are 26 questions, the Court only counted 24 questions and they are recited below under their respective category). Respondent’s oral and written application to refer Yevgeny Rabinovich to the District Attorney is hereby denied.It is well settled that there is to be liberal discovery in civil actions. CPLR 3101(a) provides for discovery of all “material and necessary” evidence. The purpose of the liberal discovery provisions of the CPLR is to facilitate pretrial preparation (see Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 288 NYS2d 449, 235 N.E.2d 430; Rios v. Donovan, 21 AD2d 409, 250 NYS.2d 818). Keeping that in mind, the Court will address the questions in dispute by category. The Petitioner did not number her questions, but referred to them by page and line. The Respondent did not number the questions, but also referred to them by page and line, and referred to them by categories. The Court has divided the questions in dispute into five categories and below each category are the determination of each question.Category 1 — After a review of all the papers as well as the transcript, it is determined that questions in this category were already rephrased and answered. Accordingly, these questions are now precluded:“Did you ever assist your mom in making medical decisions since she took ill?”“I know you are not a doctor, but are you familiar with brain tumors?”Category 2 — After a review of all the papers, it is determined that the Petitioner is authorized to rephrase these questions to the Respondent. It is well settled that discovery should be liberally construed and the Respondent’s exceptions to these questions are either inapplicable or simply irrelevant.“You are familiar with mother’s accounts are you not?”“When mother handed you a check for $1100 you did not ask her what it is for?”“Around the time of your father’s passing what was the relationship with Laura?”“Did mother, after the time of her passing and as of January 7, 2013, did mother own a brokerage account at Schwab which had been established under the terms of a testamentary trust created under the Last Will and testament of your father?”“Do you understand the difference between having a joint back account and a life policy where two parties are both names beneficiaries?”Category 3- After a review of the papers, and prior decisions, these questions are deemed precluded having it been determined that these questions are regarding New Jersey bank accounts that are not part of the subject matter herein.“Did Larry Asch or Frances Ash have other accounts in Schwab?”“In the year 2008, what was your relationship with Laura?”“Did you have a good relationship with your nieces and nephews, Laura’s children?”“Did you ever sign a signature card for Oritani bank for that account?”“Is there any reason why $910 was paid from that account as opposed to another account?”Category 4- After a review of the papers and the relevant legal authority, these questions are deemed precluded as simply being improper.“What about Laura? Did she believe mother needed to be more independent?”“Do you know why mother needed a will? Did mother tell you why she needed a will?”“Do you understand what it says each of the matters identified?”“Are you customarily signing documents that you don’t understand?”“Would you agree with the line I asked you to read earlier where it says: independent contractor agrees?”“Do you know why Dr. Friedman wrote this letter?”“Why did he write a letter as a favor?”“Did your mother have confidence in Stewart’s ability to provide for you?”“Tell me why you think it’s your money?”“All questions dealing with Respondent’s understanding about the account”Category 5 — After a review of the papers, it is determined that these questions are proper and the Petitioner may re-question the Respondent.“Did you talk to any nurse about mother’s condition?”“What was the condition of her health for the previous six weeks until the date you transferred this account? Say from November 17, 2011 until December 26, 2011.”Accordingly, based on the foregoing, this matter is hereby scheduled for control/settlement conference before the Surrogate on September 11, 2018 at 10:30 a.m. The attorneys AND their clients are directed to appear.The Clerk of the Court is directed to send a copy of this decision to all attorneys who have appeared in this matter.This decision constitutes the Order of the Court.Dated: July 17, 2018
