In this proceeding to judicially settle the account of the administrator, the decedent’s son, Tyrone, the objectant, the decedent’s granddaughter, Jenecie, moves to compel the administrator to comply with disclosure demands. Another objectant, Frank, a grandson of the decedent, cross-moves for similar relief. The movant seeks a number of necessary documents that remain outstanding (“Exhibit F” of the moving papers), despite repeated requests for the same. The cross movant also seeks responses to its “Discovery Requests” and includes copies of its served Demand, together the responses served by the administrator. In cursory fashion the cross movant indicates his cross motion is identical to the motion and the “Objectant Frank Jenkins will rely on the affirmation of the co-Objectant Jenecie Jenkins.” The administrator disagrees with the assertion and asks “the Court to review the totality of your discovery responses thus far for sufficiency.” In reply, the movant asserts that the administrator should be precluded as he has demonstrated a wilful disregard with a prior “so ordered” disclosure stipulation and the repeated discovery requests.It is axiomatic that CPLR article 31 disclosure affords a party liberal discovery of not only admissible proof but also items that would lead to admissible proof (see, New York County DES Litigation v. Eli Lilly Company, 171 AD2d 119 [1st Dept 1991]; Twenty Four Hours Fuel Corp v. Hunter Ambulance Corp., 226 AD2d 175 [1st Dept 1996]). A court will preclude a party from offering evidence if their failure to comply with disclosure orders is deemed wilful, deliberate and contumacious (see CPLR 3126; Vatel v. City of New York, 208 AD2d 524 [2nd Dept 1994]). “The nature and degree of a sanction for a party’s failure to comply with discovery generally is a matter reserved for the sound discretion of the trial court” (Green v. Kingdom Garage Corporation, 34 AD3d at 1373, 1374 [4th Dept 2006]).A review of the documents exchanged by the administrator reveals that there has been a substantial attempt to provide the documents sought by the moving parties. However, the twelve categories of items identified in Exhibit F remain outstanding. Further, although it is not clear from the cross motion what additional items remain outstanding, in reply papers, the cross movant indicates that to date the following records have not been provided: records of decedent’s accounts at the time of her death; the payee of various checks mentioned in the accounting; legal fees outlined in the accounting assume value of property for which no appraisals were done; appraisals of the realty located at 3325 and 3327 Hone Avenue, assuming the same were done. Further, the administrator fails to explain the basis of $142,659.11 in loans he allegedly made to the estate and fails to indicate the details of cash disbursements in Schedule J of the account.Accordingly, this decision constitutes the order of the court granting the motion and cross motion to the extent of precluding the administrator from offering into evidence proof of any of the items contained in Exhibit F and the enumerated items identified in the cross movant’s reply papers if within 30 days after service upon counsel of a copy of this decision and order with Notice of Entry the administrator fails to provide the same. In light of the instant motion, the discovery stipulation entered into by the parties on May 3, 2018 is modified to the extent that the parties shall conduct depositions within 45 days after the administrator furnishes the discovery as directed herein, and further modified to direct the administrator to serve and file a Note of Issue, Certificate of Readiness and Statement of Issues in accord with Uniform Rules for Surrogate’s Court (22 NYCRR) §§207.29 and 207.30 within 15 days of completion of depositions.Proceed accordingly.
