The following papers were considered in deciding this motion to compel pursuant to CPLR 3124, which also seeks related relief: Papers Numbered Respondents’ Notice of Motion to Compel, Affirmation of Brooke S. Morris, Esq., in Support, with Exhibits, and Memorandum of Law in Support 1, 2, 3 Affirmation of attorney draftsperson Robert C. Lawrence, Esq., in Opposition, with Exhibits 4 Affirmation of Spencer L. Reames, Esq., in Opposition, with Exhibits 5 Petitioner Susan Bates’s Memorandum of Law in Opposition to Motion to Compel 6 Reply Affirmation of Brooke S. Morris, Esq., in Further Support 7 Respondents’ Reply Memorandum of Law in Further Support 8 DECISION and ORDER In this probate proceeding in the estate of Nicholas Zoullas, Susan Bates (Proponent), decedent’s surviving spouse and the beneficiary and nominated executor under the propounded instrument, dated April 3, 2018, and decedent’s sons from a prior marriage, Alexis Zoullas and Sophocles Zoullas (Respondents) are engaged in pre-objection discovery pursuant to SCPA 1404. Before the court is the Respondents’ motion: (1) to compel disclosure of certain documents and email communications pertaining to two litigations in which decedent was involved as well as email communications concerning the sale of decedent and Proponent’s jointly owned co-op apartment, which have been withheld based on attorney-client privilege or the work product doctrine, and (2) to extend the court-ordered deadlines to conduct SCPA 1404 examinations and to file probate objections. Respondents’ primary arguments are that the documents and email communications at issue should be produced because they fall within the scope of the exception to the attorney-client privilege set forth in CPLR 4503 (b), relating to the preparation of wills and trusts, and also that the privilege has been waived. On the return date of the motion, the court directed Proponent to produce, for in camera inspection, the withheld documents. The court has examined the relevant portion of the privilege log and each of the 164 documents and email communications described therein which Proponent produced for this court’s in camera review. Upon such review and upon consideration of the parties’ arguments, the court concludes that none of the documents and email communications need be disclosed to Respondents. They are irrelevant to any of the issues in this probate proceeding and to any potential objection that could be asserted by Respondents, or they are protected by the attorney-client privilege or constitute attorney work product (see CPLR 4503 [a]; see Matter of Manas, NYLJ, Apr. 12 1996, at 31 col 4 [Sur Ct, Bronx County]; see also Matter of Deim, NYLJ, Oct. 26, 1995, at 6, col 2 [Sur Ct, Suffolk County]; Matter of Centrone, NYLJ, Nov. 16, 1989, at 6, col 1 [Sur Ct, Bronx County]). Based on the foregoing, Respondents’ motion is denied to the extent it seeks to compel the production of the documents and email communications listed on Exhibit 2 to the Affirmation of Brooke S. Morris in support of the motion. The motion is granted to the extent of directing that the date to complete SCPA 1404 examinations is extended to December 20, 2024, and that verified objections to probate, if any, shall be served and filed with the court no later than January 14, 2025. In view of the court’s determination of the instant motion, two other motions that had been submitted for written decision1 are moot. The parties should proceed to complete 1404 discovery and depositions by the deadline directed above. This decision constitutes the order of the court. Clerk to notify. Dated: November 15, 2024
