Surrogate PettitEstate of JOAN F. MAHONEY (17-836/D), Deceased — GEORGE D. MAHONEY and STEVEN D. MAHONEY, as Executors, Petitioner, WILLIAM E. KOUGHN, Respondent.Appearances:William F. Ryan, Esq., Eric N. Dratler and Brian M. Quinn, Attorneys for Petitioners, Tabner, Ryan & Keniry, LLP, Albany, New YorkRichard D. Cirincione, Esq., Co-counsel for Respondent, McNamee Lochner P.C., Albany, New YorkChristina Tangredi, Esq., Co-counsel for Respondent, West Sand Lake, New YorkPapers Considered:Petitioners’ Notice of Motion and Affirmation of Eric N. Dratler, Esq. in Support of Petitioners’ Motion to Compel Disclosure, with exhibits, all dated October 2, 2018.Respondent’s Affirmation, with exhibits, dated September 27, 2018.Respondent’s Notice of Motion, Affirmation of Richard D. Cirincione, Esq., and Memorandum of Law, with exhibits, in support of Respondent’s Cross Motion for Summary Judgment, all dated October 4, 2018.Petitioners’ Affidavit of George D. Mahoney, with exhibits, and Memorandum of Law in Opposition to Respondent’s Cross Motion, dated October 22, 2018.Reply Memorandum of Law in Support of Respondent’s Motion for Summary Judgment, dated October 24, 2018.DECISION AND ORDERPettit, S.,Presently before the Court in this contested SCPA 2103 discovery proceeding is a motion by George D. Mahoney and Steven D. Mahoney (hereinafter petitioners) for an order compelling disclosure from William E. Koughn (hereinafter respondent), and striking the answer unless respondent complies with petitioners’ discovery demands. Respondent opposes the motion and has cross-moved for summary judgment dismissing the petition. Petitioners oppose respondent’s cross motion.Joan F. Mahoney (hereinafter decedent) was a New York domiciliary. Prior to her death, decedent and respondent, her long-time companion, spent time residing in both her New York home and her condominium located in Islamorada, Florida. In 2017, decedent was the subject of a Mental Hygiene Law article 81 guardianship proceeding in Albany County. She died testate on July 13, 2017, survived by six children, petitioners and four others. Preliminary letters testamentary were issued to petitioners in September 2017. Decedent’s will was admitted to probate and letters testamentary were issued to petitioners in May 2018. The will makes provision for the use and occupancy by respondent of decedent’s Florida condominium while requiring him to keep the property in good repair and to pay all maintenance, condominium or homeowners fees and utilities related to the property. Respondent is also granted the use of certain personal property of decedent located in the Florida condominium not otherwise disposed of by the will. Petitioners are required to pay real estate taxes, assessments and insurance on the condominium out of a fund established by the will in the amount of $250,000. In the event the fund is depleted during occupancy of the condominium by respondent, the will provides for the termination of respondent’s use and occupancy on twelve-months’ notice to him. Various other provisions in the will terminate respondent’s use and occupancy of the Florida condominium in the event he becomes a resident of a nursing home or long-term care facility, vacates the premises for over 60 days or fails to comply with the restrictions and obligations required of him by the will. Decedent’s will also establishes a trust of $250,000 to be paid over a five-year period to respondent if he is living and not a resident of a nursing home or long-term care facility. Upon termination of respondent’s use and occupancy of the Florida property, the property and the remainder, if any, of the fund and trust are distributed in accordance with the residuary clause of the will, to decedent’s six children. Additionally, there are several bequests in the will, instructions regarding New York real property, and a clause leaving the residue of the estate equally to decedent’s six children.Petitioners commenced this proceeding seeking to discover and obtain property and information from respondent. More specifically, the discovery proceeding seeks information and valuations regarding decedent’s personal and real property and purported lifetime gifts, including: her Schwab investment account; her bank account and safe deposit box located in Florida; her condominium located in Florida; household furnishings, computers, a handgun and other personal property contained in the condominium; cash, coins and other property stored in two safes in the condominium; a motor vehicle, boat and utility trailers and other items in storage; and papers and records of decedent. Petitioners allege that respondent, who is residing in the Florida condominium, has not allowed petitioners sufficient access to decedent’s property or provided information necessary for tax purposes and to administer decedent’s estate. Petitioners also seek possession of decedent’s assets for administration purposes and turnover of assets they allege respondent has diverted to himself. Respondent filed an answer and amended answer in response to the petition.Turning first to respondent’s cross motion to dismiss the petition, respondent argues that the Court lacks both personal jurisdiction of respondent and subject matter jurisdiction. However, as to personal jurisdiction, respondent concedes in his reply memorandum that no pre-answer motion was made pursuant to CPLR 3211 and that he did not raise lack of personal jurisdiction in his answer or amended answer. Furthermore, respondent admits that he appeared in decedent’s New York guardianship proceeding and is currently a respondent in the accounting proceeding of petitioner George Mahoney as guardian of decedent’s property. Based on such concessions, respondent has withdrawn the portion of his motion seeking dismissal for lack of personal jurisdiction, and the only argument remaining on respondent’s motion is that the Court lacks subject matter jurisdiction.Respondent alleges that the issues raised in this proceeding should be dealt with in the ancillary proceeding in Florida, commenced by petitioners after the instant proceeding was commenced in New York, because the property subject to this discovery proceeding is located in Florida. Respondent argues that this Court has no subject matter jurisdiction over the Florida real and personal property of decedent. Petitioners disagree.Surrogate’s Court has “full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and … to try and determine all questions, legal or equitable, arising between any or all of the parties … as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires” (SCPA 201 [3]; see N.Y. Const, art. VI, § 12). This jurisdiction includes the power to determine a decedent’s interest in any property claimed to constitute part of the gross estate or to be property available for distribution under a decedent’s will, and to determine the rights of any persons claiming interests therein (SCPA 209 [4]).A discovery proceeding pursuant to SCPA 2103 may be brought by fiduciaries concerning any property, as defined in SCPA 103, that is “real or personal property, or is a chose in action.” SCPA 2103 (1) limits access of a fiduciary in discovery petitions to “the court which has jurisdiction over the estate,” suggesting that ancillary administrators may not be able to avail themselves of discovery proceedings “because their authority is circumscribed by their assistive role” (see Matter of Stern, 91 NY2d 591, 602-603 [1998]). This Court, as the court with primary jurisdiction over decedent’s estate, unlike a court of ancillary jurisdiction, is the proper forum to bring a discovery proceeding as to property over which it has subject matter jurisdiction (see SCPA 2103 [1]).The Court will first consider whether it has subject matter jurisdiction over decedent’s personal property located in Florida, before turning to issues regarding decedent’s real property. Personal property includes “any property other than real property, including tangible and intangible things” (EPTL §3-5.1 [a] [1]). At issue in this discovery proceeding is personal property including an investment account, a bank account, a safe deposit box, a motor vehicle, boat and utility trailers, papers and records of decedent, personal safes containing cash, coins and other property, furnishings, computers, a handgun and other personal property located in Florida. Questions concerning personal property rights are determined by reference to the substantive law of the decedent’s domicile (EPTL 3-5.1 [b] [2]). Moreover, both New York and Florida follow the applicable choice of law principal that such questions are to be determined by the law of decedent’s domicile (see Southeast Bank, N. A. v Lawrence, 66 NY2d 910, 912 [1985]). As decedent was a New York domiciliary whose will was probated in Albany County, this Court has subject matter jurisdiction of all of decedent’s tangible and intangible personal property at issue in this proceeding, whether located in Florida or elsewhere (see Matter of Donahue, 262 AD2d 840, 841 [3d Dept 1999]; Matter of Bauman, 140 Misc 2d 412, 414 [Sur Ct, NY County 1988]).As to real property, it is clear that Florida law would apply to the determination of the validity and effect of the disposition under decedent’s will of her real property in Florida (see EPTL 3-5.1 [b] [1]). However, the issues raised in this discovery proceeding with regard to the Florida condominium owned by decedent do not concern title to the property but, instead, concern inspection and valuation of the property as part of decedent’s gross estate and as property to be administered by petitioners. Matters concerning the condition, value and proof of maintenance of the real property of decedent, as well as proof of payment of levied fees, clearly fall within the fiduciaries’ powers enumerated under SCPA 209 (4) subject to this Court’s supervision of a New York domiciliary’s estate. It is therefore not necessary to determine, in the context of this proceeding, whether the Court has subject matter jurisdiction to determine the validity and effect of the disposition of the real property. Having determined that this Court has subject matter jurisdiction as to the issues raised in this proceeding regarding both the real and personal property of decedent, wherever located, the Court now turns to petitioners’ motion to compel compliance with discovery demands pursuant to CPLR 3124 and 3126. A trial court has broad discretion to supervise and control discovery (see Matter of Scaccia, 66 AD3d 1247, 1249 [3d Dept 2009]; Saratoga Harness Racing v Roemer, 274 AD2d 887, 888 [3d Dept 2000]). CPLR 3124 provides that, “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under [CPLR article 31], the party seeking disclosure may move to compel compliance or a response.” Furthermore, the purpose of a discovery proceeding is to provide a fiduciary the opportunity to obtain information to assist in the recovery of estate assets and information to otherwise administer an estate (see SCPA 2103, 2104). A fiduciary should be allowed the broadest latitude in deposing a respondent to obtain such information (see Matter of Fialkoff [Green], 45 Misc 3d 1205[A], 2014 NY Slip Op 51465[U] [Sur Ct, Queens County 2014]). Respondent has failed to submit to an examination and has failed to comply with the other discovery demands made by petitioners in July 2018. Furthermore, respondent did not object to disclosure pursuant to CPLR 3122.Accordingly, it is ORDERED that petitioners’ motion to compel disclosure is granted; and it is furtherORDERED that respondent provide responses to all of petitioner’s discovery demands within twenty days of this Order; and it is furtherORDERED that a deposition or an examination of respondent pursuant to SCPA 2103 and 2104 shall be scheduled to be held at the courthouse or at the office of counsel for petitioners within forty-five days of this Order; and it is furtherORDERED that petitioners’ motion to conditionally strike respondent’s answer and preclude him from offering any evidence or testimony to substantiate his responses or claims pertaining to this proceeding pending his compliance with the discovery demands within the times specified in this Order is granted; and it is furtherORDERED that the cross motion of respondent is denied.This constitutes the Decision and Order of the Court.
