The court considered the following papers in determining this motion for summary judgment and the cross-motion in opposition:Papers Considered NumberedNotice of Motion, dated March 8, 2019, by Respondent-Executors for Summary Judgment and Dismissal of the Proceeding 1Affidavit, dated March 8, 2019, of Ronald D. Spencer, In Support of Motion, Attaching Exhibit A through BB 2Affidavit, dated February 20, 2019, of Elin Lake Ewald, in Support of Motion, Attaching Exhibits 1 through 2 3Affirmation, dated February 13, 2019, of Jill Kupferberg, Esq., in Support of Motion, Attaching Exhibits 1 through 3 4Memorandum of Law, dated March 8, 2019, in Support of Motion 5Notice of Cross-Motion, dated April 5, 2019, of Petitioner, for Discovery, etc. 6Affirmation, entitled “Declaration,” dated April 4, 2019, in Opposition to Motion and in Support of Cross-Motion, attaching Exhibits A through Q 7Memorandum of Law, dated April 5, 2019, in Opposition to Motion and in Support of Cross-Motion 8Reply Memorandum of Law, dated April 19, 2019, in Further Support of Motion and In Opposition to Cross-Motion 9Reply Memorandum of Law, dated April 24, 2019, in Further Support of Cross-Motion and in Opposition to Motion 10Supplemental Affirmation of Judith M. Wallace attaching Exhibits A through C 11DECISION and ORDER At the call of the calendar on April 30, 2019, the court held in abeyance, pursuant to CPLR 3212(f), that portion of the motion by the executors of the estate of decedent Madeline Gins that sought summary judgment dismissing a petition that seeks the recovery and turnover of artwork (see Int’l Rescue Comm. v. Reliance Ins. Co., 230 AD2d 641 [1st Dept 1996]; Bingham v. Wells, Rich, Greene, Inc., 34 AD2d 924 [1st Dept 1970]). Movants shall supplement their motion papers to comply with CPLR 3212(b) (see Washington Realty Owners, LLC, v. 260 Washington Street, LLC, 105 AD3d 675 [1st Dept 2013]). After conducting discovery, as per the schedule agreed to by the parties and set forth below, the parties may supplement their submissions with any additional evidence regarding: (a) the scope and particulars of what may have been given by decedent and her spouse in the 1987 Deed of Gift at issue here to the petitioning foundation, now known as The Architectural Body Research Foundation, Inc., and/or (b) the time a cause of action for conversion may have accrued, including whether and when the directors of the petitioning foundation, apart from decedent and her spouse, knew or may have known that decedent and her spouse were exercising ownership in their individual capacity over the artwork in question, referred to as The Mechanism of Meaning.That portion of the summary judgment motion which sought to deny petitioner its own records in the possession of decedent’s executors on the basis of laches or as barred by the statute of limitations was denied (see Dwyer v. Mazzola, 171 AD2d 726 [2d Dept 1991]). Decedent was a director of the petitioning foundation during her life and kept its records. Although the executors turned over some records of petitioner in the course of a similar proceeding in the U.S. District Court for the Southern District of New York, which court eventually determined that it lacked subject matter jurisdiction under the probate exception to its jurisdiction (see Architectural Body Research Foundation v. Reversible Destiny Foundation, Inc., 335 F Supp 3d 621 [SDNY 2018]),1 the executors do not deny that they may have retained additional such records in and among decedent’s papers and belongings. The court directed the executors to turn over to petitioner’s counsel all of the petitioning foundation’s own documents in their possession and control no later than July 1, 2019. This includes legal files, tax returns, papers, and correspondence.Also before the court on April 30, 2019, was the cross-motion of petitioner. That portion of the cross-motion for leave to conduct discovery pursuant to CPLR 3214(b) was dismissed as resolved in light of the ruling permitting discovery pursuant to CPLR 3212(f) above, but that portion of the cross-motion seeking an order to place in escrow any proceeds of the sale of the artwork at issue was denied at this time because petitioner did not meet its burden to establish a basis for such a restriction on the executors (see Herczl v. Feinsilver, 153 AD3d 1336 [2d Dept 2017]).All discovery demands shall be made without delay and, in any event, no later than May 17, 2019. Examinations should be scheduled immediately or as soon as possible. All documents (together with any privilege log) can be produced on a rolling basis but, in any event, shall be produced no later than July 1, 2019. All discovery shall conclude no later than September 13, 2019.Further submissions in support of summary judgment shall be filed and served no later than October 16, 2019; further submissions in opposition shall be filed and served no later than November 1, 2019; and further submissions in reply shall be filed and served no later than November 15, 2019. The summary judgment motion will be called again on the court’s December 3, 2019, 10:00 a.m. calendar. Deadlines set by this decision may be extended on the stipulation of all parties or further order of the court.This decision, together with the transcript of the April 30, 2019 proceedings, constitutes the order of the court.Dated: May 9, 2019
