The following papers numbered 1-10 were read on proponent Howard Tom’s (hereinafter “the proponent”) motion in the underlying contested probate proceeding. Movant seeks an order, pursuant to CPLR 3212, granting summary judgment and dismissing all objections; or alternatively, an order pursuant to CPLR 3126, striking all objections for failure to comply with discovery demands and/or pursuant to CPLR 3124, compelling discovery. PAPERS NUMBERED Notice of Motion — Affirmations — Affidavits — Exhibits 1-4 Memorandum of Law 5 Affidavits of Service 6 Opposition Affidavit — Exhibits 7-8 Memorandum of Law 9 Affidavits of Service 10 Edward S. Tom (hereinafter sometimes referred to as “decedent”), died on December 31, 2015, leaving his mother Yvonne Quan Tom, as his sole distributee. However, offered for probate in this proceeding is an attorney-drafted instrument dated June 24, 2005, purported by the proponent, decedent’s brother and nominated executor, to be decedent’s Last Will and Testament. The propounded instrument (hereinafter “the will”) bequeaths the decedent’s entire estate to proponent. Preliminary Letters Testamentary were issued to proponent on March 8, 2016. Proponent and objectants Donald S. Tom and Kirk Tom (hereinafter “objectants”), are all brothers of decedent. At the time the will was executed, proponent and his parents, Yvonne Quan Tom and Hall B. Tom, lived together in one apartment and decedent lived in another apartment, all in the same building. Objectants live out of state. Two months’ prior to executing the will in 2005, decedent had back surgery, leaving him wheelchair bound and incontinent. The will was executed on June 24, 2005, six days after decedent was discharged and returned home. Thereafter, in April 2013, decedent testified in a medical malpractice suit related to this surgery. It is uncontested that after his initial surgery in 2005, decedent relied on proponent for all his personal care, including procuring home health aides, delivering groceries and prescriptions. The will was drafted, and its execution was supervised, by Ralph Coti, Esq. Decedent’s two longtime friends, Hugh Thomas and Arthur Castle, both witnessed the execution of the will. Decedent telephoned each witness and arranged for each of them to come to his apartment for the sole purpose of witnessing his will. Each witness signed the Affidavit of Execution that was then notarized by Ralph Coti, Esq., on the date of execution, June 24, 2005. Objections were filed on September 19, 2016, alleging that decedent lacked capacity, that the will was not duly executed or was executed by mistake, and further, that the will was the product of fraud, duress and/or undue influence perpetrated by the proponent. Decedent’s father predeceased on December 31, 2015, leaving decedent’s mother, Yvonne, as his sole distributee. Yvonne died intestate on April 30, 2016. Objectants were appointed administrators of Yvonne’s estate on September 29, 2016. Additionally, objectant Donald Tom was nominated as a successor executor under decedent’s will. Donald Tom sought to remove proponent as preliminary executor in decedent’s estate upon learning of alleged financial improprieties by proponent in the decedent’s estate as well as with their parents’ assets. Proponent resigned as preliminary executor in decedent’s estate and objectant Donald Tom was appointed his successor on March 15, 2018. Proponent now moves, seeking summary’ judgment dismissing the objections filed by objectants (see CPLR 3212). Alternatively, proponent seeks an order striking all objections on the ground that objectants failed to properly respond to discovery demands (see CPLR 3126; Kihl v. Pfeffer, 94 NY2d 118 [1999]), or, alternative to an order striking objections, for an order compelling discovery (see CPLR 3124; In re Estate of Johnson, 596 NYS2d 526 [3d Dept 1993]). Objectants oppose the instant application, contending the motion must be denied as questions of fact remain, and further, that essential discovery is outstanding (see CPLR 3212 [f]). The court acknowledges that it is not the litigants’ fault for the court’s delay, due to the Covid-19 Pandemic, in responding to the instant application, and that disclosure has been stayed pending this decision (see CPLR 3124[b]; Estate of Ventura, NYLJ, September 30, 2004 at 29, col 4 [Sur Ct, Westchester County 2004]). The motion was marked “submitted” on March 3, 2020, the eve of when the entire court system, as well as the world, shut down daily operations. As the parties are all too aware, the fall-out from this global catastrophe is still on-going as motions that were submitted during that time-period are first being addressed now. In the interest of justice, this delay should in no way prejudice the rights of either party. Pursuant to CPLR 3212[f] summary judgment may be denied where facts essential to the opposition of the motion are exclusively within the knowledge of control of the movant and the opposing party has not had a reasonable opportunity for disclosure (see Baron v. Freeport, 143 AD2d 792 [2d Dept 1988]). However, there must be a likelihood that the discovery will lead to admissible evidence germane to the issues (see Marrone v. Miloscio, 44 NYS3d 502 [2d Dept 2016]). Among other things, Objectants seek to obtain(a) medical records from decedent’s primary care physician and other medical care providers; (b) powers of attorney that decedent may have signed; (c) the deposition of proponent; (d) the deposition of 3rd parties Elena Nieves Tom, Danielle Rose Nieves Tom, and Irene Geier; and (e) information from the fiduciary of Ralph Coti’s estate regarding the chain of custody of the propounded instrument. Medical records are relevant to the determination of testamentary capacity, due execution, fraud, duress and/or undue influence (see Matter of Sundmacher, 2015 NY Slip Op 312369[U] [Sur Ct, Nassau County 2015]). Proponent’s actions are relevant to allegations of execution, mistake, fraud, duress and/or undue influence (see Id.). Objectants could have requested medical records from proponent at any time prior to his resignation as preliminary executor on March 15, 2018. Moreover, as the successor preliminary executor of the decedent’s estate, objectant Donald S. Tom could have directly obtained records after his appointment on March 15, 2018, and before the filing of this motion in June 2019. Likewise, objectants were not barred from demanding documents or depositions prior to June 2019. Nonetheless, without setting a discovery schedule or bringing motion practice, objectants and proponent repeatedly discussed outstanding discovery issues. In fact, in February 2019, this Court held a conference concerning outstanding discovery issues including objectants’ request that proponent set a date for his own deposition. Proponent repeatedly failed to do so. In addition to being the decedent’s caretaker at the time the propounded will was executed, at decedent’s death proponent was in possession of the original will and admits by affidavit dated February 24, 2016, that he removed the staples to make a copy. A motion for summary judgment made shortly after a request for discovery that has gone unanswered is usually denied (see Estate of Tufaro, NYLJ, July 12, 2011, at 28, col 5 [Sur Ct, Kings County 2011]; Estate of Lenz, NYLJ, May 6, 1999, at 25, col 3 [Sur Ct, Westchester County 1999]). Additionally, the parties never established a schedule for discovery, therefore the time for discovery has not actually ended (see Matter of Sundmacher, supra). Proponent’s frustration with objectants’ failure to both timely respond and make discovery demands is understood by this court, but proponent cannot avoid being deposed in this matter through his own summary judgment motion (see Estate of Brown, NYLJ, May 11, 2020, at 17, col 2 [Sur Ct, Kings County 2020]; In re Alayof, NYLJ, June 23, 1999, at 32, col 4 [Sur Ct, Nassau County, 1999]). Moreover, considering the history of on-going discussions, it cannot be said that objectants’ failure to make formal discovery demands should deny them the opportunity to do so now (see Estate of Noezel, NYLJ, March 24, 2014, at 40, col 4 [Sur Ct, Nassau County 2014]). Accordingly, based on the foregoing, it is ORDERED that, the branch of proponent’s motion seeking summary judgment is denied as premature; and it is further ORDERED that, the branch of proponent’s motion seeking alternative relief pursuant to CPLR 3126 and/or CPLR 3124, is denied as moot. All parties are directed to appear in person in Courtroom 509, Surrogate’s Court, New York County, 31 Chambers Street, New York, NY 10007, on April 12, 2023 at 11:00 am to set a discovery schedule. The Clerk of the Court is directed to email a copy of this decision, which constitutes the order of the Court to counsel to parties as well as to any self-represented individuals. Dated: March 13, 2023
