In this contested probate proceeding, the preliminary executor moves to quash subpoenas issued by objectants and for summary judgment on objections of fraud, undue influence, duress and lack of testamentary capacity.Decedent, a retired attorney, died at the age of 102 on August 21, 2014. In the 2002 will offered for probate, decedent left his entire estate to his wife, or, if she did not survive him (which she did not), his interest in a cooperative apartment to his wife’s two nieces and one half of his residuary estate to his wife’s nieces and one half to his three brothers, or, if a brother predeceased him, to that brother’s issue. Nine nieces and nephews filed objections to probate alleging lack of due execution, lack of testamentary capacity, fraud, undue influence and duress. Preliminary letters testamentary issued to the nominated executor and, after her death, to the nominated successor.Background.Objectants previously sought summary judgment denying probate based on lack of due execution. Proponent cross-moved for summary judgment dismissing all objections. The court granted the cross-motion as to due execution (Matter of Natale, December 22, 2016, 2016 NY Misc LEXIS 4694, aff’d, 158 AD3d 579 [1st Dept 2018]). The cross-motion to dismiss the fraud, undue influence and duress objections was denied because proponent had failed to establish a prima facie case, having relied solely on objectants’ lack of evidence. As to the objection of lack of capacity, the court found that even though proponent had made a prima facie case that decedent had capacity, it granted objectants’ request to show that additional discovery was warranted on that issue (id., supra; CPLR 3212[f]). Thereafter, the parties stipulated that “the deadline to complete all discovery…in this proceeding is May 19, 2017.” They later agreed to extend the deadline to June 9, 2017, in order to conduct three depositions.Shortly before the close of the extended deadline of June 9, 2017, objectants served subpoenas duces tecum on seven banks and financial institutions, seeking documents and records of any accounts in which decedent had held an interest. Objectants allege that the documents are necessary to discover how decedent’s assets were handled by his wife and the preliminary executor, both of whom are alleged to have committed undue influence, fraud and duress upon decedent.Motion to Quash Subpoenas.Proponent now moves to quash the subpoenas on the ground that they are untimely, in that the parties stipulated that all discovery in the case, and not, as objectants argue, discovery limited to the issue of testamentary capacity, be completed before the return date of the subpoenas; and that, even if the subpoenas had been returnable before the extended deadline, the extension was granted only to allow for three specified depositions and not for further general discovery. Objectants further argue that since the principal information sought in the subpoenas concerns financial transactions between decedent and his wife, such information would not support the objections and is therefore merely a delaying tactic.In addressing this issue, the court looks to the Appellate Divisions’s decision in AQ Asset Management LLC v. Levine, 111 AD3 245, 260 [1st Dept 2013]), where the Appellate Division ruled that the court may sua sponte manage discovery even in the absence of a motion before it. In AQ, a depositor moved to quash a subpoena for bank records of his accounts. The appellate count ruled that since the bank owned its records, the depositor had no standing to object to the subpoena. Nonetheless, it recognized the lower court’s power to quash based on its inherent power to manage and control discovery.Although there is merit to proponent’s argument that the subpoenas were untimely, the court must follow the statutory directive that before admitting a will to probate it must “inquire particularly into all the facts and must be satisfied with [its] genuineness” (SCPA §1408[1]). Since the delay here was not egregious and further discovery may assist the court in determining the genuineness of the will and the merit, or lack thereof, of the objections, the court will not quash the subpoenas in their entirety. However, the subpoenas at issue are overbroad, and the court hereby issues a protective order. The documents requested must be limited to those directed by 22 NYCRR 207.27 (commonly known as the 3-2 year rule), i.e., documents which were created, sent, received, dated or in effect from May 7, 2004, to May 7, 2009. References to such documents from the inception or to the closure of such accounts must be stricken. Further, discovery is limited to those accounts in which decedent alone, decedent and his wife, or decedent and the preliminary executor had an interest. The subpoenas must be made returnable within 30 days of the date of this decision. No other discovery is permitted.Renewed Motion for Summary Judgment.As noted above, proponent attempts to renew her prior motion for summary judgment with respect to all remaining objections, but the motion is not accompanied by a moving affidavit (CPLR §3212[b]) as to several objections. The motion is also premature, since the court has granted further discovery. Although successive summary judgment motions are generally disfavored, a second motion may be permitted where the court has not had a prior opportunity to consider a fully developed record in support of summary relief, or in the interests of judicial economy where a case might be resolved by motion and an unnecessary trial avoided (see, e.g., Justus Recycling Corp v. A.F.C. Enters., 290 AD2d 279 [1st Dept 2002]; Carreras v. Weinreb, 33 A.D.3d 953 (2d Dept 2006]; US Bank NA v. Khan, 2016 N.Y. Misc. LEXIS 286 [Sup Ct, Queens County 2016]}. Accordingly, the court will entertain further motions for summary judgment, if any, by either party on all remaining objections at the close of the aforesaid discovery period.This decision constitutes the order of the court.Dated: July 16, 2019
