Opinion
2007-1040.
Decided March 15, 2010.
Albert W. Cornachio, PC (Albert W. Cornachio, III, Esq., of counsel) for Barbara Paul, proponent.
Michael F. Mongelli, II, PC (Michael F. Mongelli, II, Esq., of counsel) for John Rutherford, Barbara Verde, and Bridgette Zorbas, contestants.
In this contested probate proceeding the proponent, the preliminary executrix, moves pursuant to CPLR 2304 for an order quashing a non-judicial subpoena duces tecum issued to a non-party, JP Morgan Chase Bank, seeking all account records in her name, individually, or in her name and that of another person. The objectants oppose the motion contending, inter alia, that the subpoenaed information is relevant to the issues raised in this proceeding. In addition, the objectants move to reopen the deposition of the respondent due to her production of additional discovery documents after her deposition. The proponent opposes the objectants' motion asserting that all issues relating to the additional discovery documents she provided were fully explored during her deposition.
The decedent died on October 10, 2007 at the age of 75. Her distributees are a brother and three children of a predeceased sister, all of whom are specifically excluded as beneficiaries under the propounded instrument dated May 18, 2007. The proponent, the decedent's long-time housekeeper, is the sole beneficiary under this instrument. It appears from the record that on the same date that the decedent executed the propounded instrument she also executed a durable power of attorney appointing the proponent as her attorney-in-fact. The decedent's nieces and nephew filed objections, alleging lack of due execution, that the decedent was not competent to make a will, and that the will was procured by fraud and is the product of undue influence practiced on the decedent by, among others, the proponent, her sister and daughter. On October 16, 2008, the objectants served a discovery demand which the proponent responded to in part and, on April 13, 2009, the proponent was deposed.
During her deposition the proponent testified that she was employed by the decedent for 12 or 13 years, worked seven days a week and was paid $100 per day. She did not live with the decedent, but performed all cooking, shopping, and chores, accompanied the decedent to appointments, and assisted the decedent with personal needs. Generally, the decedent paid the proponent's salary by check made out to "cash," which the proponent countersigned and deposited to her personal checking account at the same JP Morgan Chase Bank branch where the decedent's accounts were located; however, on occasion, the decedent paid her salary in cash, just as the decedent paid the salaries of a driver, gardener and other creditors in cash. The proponent wrote out the checks for the decedent, who signed them, and made deposits and withdrawals for the decedent without the decedent being present, but the decedent filled out all deposit slips and signed all checks beforehand, and the proponent returned all bank receipts to the decedent who filed them. If the decedent needed household cash or cash to pay bills, the proponent wrote checks out to "cash," and the decedent signed the signatory line and endorsed the back of the check which the proponent took to the bank to cash. The last time that the decedent went to the bank was in connection with giving the proponent the power of attorney which the proponent never used.
On the day following the proponent's deposition, the objectants issued a non-judicial subpoena duces tecum to JP Morgan Chase Bank seeking documents relating to all accounts held by the proponent individually or jointly with others; specifically, copies of all: (1) bank statements from the date each account was opened to date; (2) checks (front and back) drawn on the accounts; (3) powers of attorney on file; (4) documents reflecting the contents of any safe deposit box and all entry logs associated with such box(es); (5) withdrawal and transfer tickets; and, (6) other books, papers, documents, writings, statements and photographs in connection with the decedent's estate. Thereafter, the proponent served a supplemental response to the objectants' original discovery demand, and provided 300 checks drawn on the decedent's individual JP Morgan Chase Bank account and an account held jointly with the proponent. These checks include 65 that are payable to "cash", and allegedly total $130,000 for the period June 2004 through September 2007.
The proponent moves to quash the subpoena, noting that the objectants received all records relating to the decedent's accounts or accounts the decedent held jointly with the proponent and, relying on Matter of Sandin ( 134 Misc 2d 968), she contends that her personal bank accounts are irrelevant to issues involving the probate proceeding. The objectants oppose the motion and assert that they have the right to trace whether cash deposits were made to the proponent's personal accounts within a reasonable time-frame after cash withdrawals were made from the decedent's accounts, in order to determine whether the proponent accurately testified that these funds were used to pay the decedent's expenses. The proponent replies that the already-discovered checks made out to "cash" conform to her testimony concerning the decedent's custom and practice of paying expenses in cash, and the objectants are on a "fishing expedition" unrelated to any issue in this proceeding. In response to the objectants' motion to reopen the proponent's deposition due to her providing additional items after the date of her deposition, the proponent contends that all issues concerning the decedent's regular and routine banking habits were explored at her deposition, and the request to reopen her deposition serves only to harass and annoy her.
With respect to the motion to quash, as all of the parties have focused upon the relevancy of the documents subpoenaed, the court will only address this issue (see Siskin v 221 Sullivan St. Realty Corp., 162 AD2d 356, 357). Therefore, the court will not discuss whether, in litigation involving only private parties, the court must rigidly follow the cases holding that private citizens do not have a right to privacy, or any other constitutional right, giving them standing to seek to quash a subpoena served upon a financial institution by a governmental agency in the course of investigating matters within its jurisdiction (cf. Matter of Norkin v Hoey, 181 AD2d 248, 250 ; Siskin v 221 Sullivan St. Realty Corp., 162 AD2d at 356; and see Kephart v Burke, 306 AD2d 924; Matter of Oncor Communs., Inc. v State, 218 AD2d 60; GLIG, Inc. v Burgher, 4 Misc 3d 1028[A] [2004]). Specifically, the court will not address the issue of whether, in litigation between private parties, in light of the fact that if the parties were not engaged in litigation one party could not obtain the financial records of the other, there are any public policy considerations or any other reason for holding that a party lacks standing to move to quash a subpoena for that party's records served upon a financial institution by the other party on the ground that the records sought are irrelevant to any issue in the proceeding (see Matter of MacLeman, 9 Misc 3d 1119[A] [2005]).
Generally, the test for disclosure under CPLR 3101 is whether the information sought is "material or necessary." The test is one of relevance, usefulness and reason (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). An application to quash a subpoena should be granted "[only] where the futility of the process to uncover anything legitimate is inevitable or obvious' (Matter of Edge Ho Holding Corp., 256 NY 374, 382) or where the information sought is utterly irrelevant to any proper inquiry'" (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332, also quoting Matter of La Belle Creole Intl., S.A. v Attorney Gen., 10 NY2d 192, 196, quoting Matter of Dairymen's League Co-op. Assn. v Murtagh, 274 App Div 591, 595, affd 299 NY 634).
The subpoena that was served upon the bank is clearly too broad. The objectants are not entitled to information that is not relevant to the will contest merely because this information might be useful in a future proceeding alleging that the proponent converted the decedent's assets. Here, the records requested are not limited to a time-frame related to the execution of the will. Furthermore, any payments that the proponent made from her own accounts to strangers to this litigation are not relevant to any issue in the will contest. Additionally, as a practical matter, no inference may be drawn from whether or not the proponent has or had a safe deposit box. Consequently, the broad subpoena served upon the bank is quashed (see Anheuser-Busch, Inc. v Abrams, 71 NY2d at 331-332).
Nonetheless, the objectants are entitled to some of the information requested in the subpoena. The discovery obtained to date demonstrates that the respondent played a part in cash transactions involving the decedent's funds. Whether, in fact, the decedent made cash transactions to pay creditors, as claimed by the proponent, or whether that cash was deposited in the proponent's individual accounts, might be material, relevant and necessary in preparing for trial on the issue of undue influence, and under certain circumstances, might also be relevant on the issue of testamentary capacity. Accordingly, after service of a copy upon the proponent, the objectants may submit a subpoena to be "so-ordered" by the court directing the bank to deliver to the court all bank statements for the proponent's individual and joint accounts for the period from May 2004 through October 2007 (see 22 NYCRR § 207.27). The court will redact the records received so that they show only the deposits made. Thereafter, such redacted records will be made available to all parties.
With respect to the motion to reopen the deposition, as the proponent's supplemental response to the discovery demand included several checks for at least $2,000, the motion to reopen the deposition, limited to inquiries about specific checks, is granted; however, to avoid an application to depose the proponent for a third time, her deposition shall not be continued until after the parties have had the opportunity to review the documents that are to be delivered pursuant to the "so-ordered" subpoena. Of course, any information gleaned from those documents may also be the subject of inquiry at the continued deposition.
Accordingly, to the extent indicated herein, this decision constitutes the order of the court granting both the motion to quash the subpoena and the motion to reopen the deposition of the proponent.
Proceed accordingly.