Matter of Goebel , 26 N.Y.S.3d 537 ( 2016 )

Matter of Goebel (2016 NY Slip Op 01177)

Matter of Goebel

2016 NY Slip Op 01177

Decided on February 17, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 17, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.

2014-00648
2014-00651

[*1]In the Matter of Louis E. Goebel, also known as Louis Emil Goebel, also known as Louis Goebel, also known as Lou Goebel, deceased. Susan J. Rera, petitioner-appellant; Alba Goebel, objectant-respondent. (File No. 911-11)

Frank T. D'Onofrio, Jr., Scarsdale, NY, for petitioner-appellant.

Belair & Evans LLP, New York, NY (Raymond W. Belair of counsel), for objectant-respondent.

DECISION & ORDER

In a contested probate proceeding, Susan J. Rera, as the preliminary executor of the estate, appeals from (1) so much of an order of the Surrogate's Court, Orange County (Onofry, S.), dated October 10, 2013, as denied her cross motion to compel the objectant to respond to certain interrogatories and to produce documents related thereto, and (2) an order of the same court dated November 22, 2013, which denied her motion for leave to reargue and renew her cross motion.

ORDERED that the order dated October 10, 2013, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the appellant's cross motion which was to compel the production of certain documents relevant to the objectant's answers to the subject interrogatories, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the order dated November 22, 2013, as denied that branch of the appellant's motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeal from so much of the order dated November 22, 2013, as denied that branch of the appellant's motion which was for leave to renew that branch of the prior cross motion which was to compel the production of certain documents is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order dated October 10, 2013; and it is further,

ORDERED that the order dated November 22, 2013, is affirmed insofar as reviewed, without costs or disbursements.

In this contested probate proceeding, as part of her second set of interrogatories to the [*2]objectant, Susan J. Rera, the preliminary executor of the estate, requested the production of specific documents, including a copy of the objectant's last will and testament (see CPLR 3131). She later reiterated that request in a branch of her cross motion that is the subject of the instant appeal. In opposition to the cross motion, the objectant's counsel specifically agreed to produce a copy of the objectant's last will and testament, and stated that the rest of the requested documents were the subject of an ongoing search by the objectant and "[a]nything which is found will be produced." Under the circumstances, the Surrogate's Court improvidently exercised its discretion in denying the unopposed branch of Rera's cross motion which was to require the production of such documents, and we modify the order dated October 10, 2013, accordingly. The Surrogate's Court providently exercised its discretion in denying the remaining branches of the cross motion (see generally CPLR 3124; Palma v Iona Coll., 259 AD2d 532).

Moreover, the Surrogate's Court providently exercised its discretion in denying that branch of Rera's subsequent motion which was for leave to renew that branch of her cross motion which was to compel the objectant to respond to certain interrogatories, as she failed to meet the requirements of CPLR 2221(e)(2) (see Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 585).

BALKIN, J.P., CHAMBERS, COHEN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court