Opinion
File No. 2011-367869 Dec. No. 28734
05-13-2013
In the Matter of the Probate Proceeding, Will of MORRIS JACOBS, Deceased.
In connection with a petition for probate, a motion has been filed by objectant Ellenmorris Tiegerman for an order issuing a commission to a person authorized to conduct depositions in the State of Florida to compel Daniel Jacobs to appear at a deposition. Opposition to the motion has been filed by Susan Thys-Jacobs, cross-petitioner for probate.
For the reasons set forth below, the motion is denied without prejudice to renew.
BACKGROUND
Morris Jacobs (hereinafter, "decedent") died on April 16, 2011, survived by his wife, Rita Jacobs (hereinafter, "Rita"), and his three children, Ellenmorris Tiegerman, Susan Thys-Jacobs, and Daniel Jacobs (hereinafter, "Ellenmorris," "Susan," and "Daniel"). Decedent's will, dated October 14, 2009, was offered for probate by Rita; objections to probate were filed by Ellenmorris. An order granting preliminary letters to Rita was signed on December 1, 2011.
Subsequently, Susan, as the successor executor named in decedent's will, filed a cross-petition for probate, indicating that Rita no longer had the capacity to serve as executor and asking that the court appoint Susan as the successor executor, and that the verified petition offered by Rita, dated November 29, 2011, be withdrawn. A guardian ad litem was appointed to represent Rita's interests. Preliminary letters testamentary issued to Susan on July 24, 2012, and were extended for six months on February 4, 2013.
As indicated in the papers filed with this court, the key issue underlying the friction between Ellenmorris and Susan is ownership of the decedent's home in Great Neck, which at one time was held by the decedent, Rita, and Ellenmorris as joint tenants. During decedent's lifetime, the joint tenancy was severed by the decedent and Rita, creating a tenancy-in-common among the three owners. Ellenmorris maintains that it was decedent's longstanding intent for his home to pass to her in its entirety so as to benefit the School for Language and Communication Development, of which Ellenmorris is the principal. Ellenmorris claims that Susan and others unduly influenced the decedent to pressure him into changing the deed to his home to a tenancy-in-common.
Ellenmorris asserts that Daniel's testimony is crucial to the probate proceeding as he has knowledge of the undue influence practiced by Susan upon the decedent in connection with the decedent's estate plan.
THE MOTION
The motion, and affirmation in support, filed on behalf of Ellenmorris asks the court to enter an order for the issuance of an open commission to a notary public or other officer authorized to administer oaths in the State of Florida, as commissioner, to take the oral examination of Daniel, as a non-party witness in this proceeding. Movant argues that it is "unlikely that Daniel will voluntarily appear at a deposition in this proceeding."
Counsel for Susan filed an affirmation in opposition to the motion in which counsel argues that the motion must be denied as procedurally improper in that it does not demonstrate that Daniel's testimony cannot be obtained without the intervention of the court.
Counsel for movant responded with a reply affirmation in further support of the motion, asserting that the issuance of a commission is appropriate where it is unlikely that the non-party will voluntarily appear. Counsel further asserts that Daniel's testimony is material to the proceeding.
In a sur-reply filed in opposition to the motion, counsel for Susan reiterates that no proof has been offered to support the statement that Daniel is unlikely to voluntarily appear for a deposition in New York and therefore, the motion must be denied.
ANALYSIS
Pursuant to the terms of the CPLR, a court may issue an open commission to enable a party to depose a witness outside of New York State "where necessary or convenient" (CPLR 3108; see Matter of Gerbig, NYLJ, Sept. 24, 1996 at 26, col 2 [Sur Ct, Westchester County]). Authorization for the issuance of a commission can also be found in the Surrogate's Court Procedure Act (SCPA 508 [2]). The party seeking the commission must demonstrate that the testimony sought is necessary and that it would be unavailable without the issuance of a commission (see Karaduman v Newsday, Inc., 95 AD2d 669 [1st Dept 1983]). Movant should provide the court with "affidavits of the party or person having knowledge of the facts rather than by unverified, unsupported hearsay statements" (Matter of Gerbig, NYLJ, Sept. 24, 1996, at 26, col 2 [Sur Ct, Westchester County], citing Matter of Smith, 1 AD2d 1032 [2d Dept 1956]) and demonstrate that it would be impractical to depose the witness in New York, or that it would not be effective to serve the witness with a subpoena outside of New York (see e.g. Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984]).
In the present case, movant has not taken steps to establish that Daniel's testimony is necessary or that Daniel has refused to provide testimony in New York. Despite multiple affirmations filed in opposition to the motion for a commission, movant has not provided any evidence that Daniel's testimony is necessary or that counsel contacted Daniel to inquire as to whether he would be willing to testify voluntarily in the probate proceeding. Instead, movant references a conversation among counsel during a court conference in which counsel for Susan agreed with counsel for Ellenmorris that Daniel has been generally uncooperative in the estate administration. At that time, counsel for Susan did not verbally object when counsel for Ellenmorris indicated his intent to seek an open commission. However, reference to a single conversation among counsel does not rise to the level of evidence required for the issuance of a commission. Movant must file affidavits or other evidence demonstrating the necessity of Daniel's testimony as well as his unavailability to testify in New York (Karaduman v Newsday, Inc., 95 AD2d 669 [1st Dept 1983]; Matter of Benedipiuk, NYLJ, May 31, 1994, at 28, col 5 [Sur Ct, New York County]).
The court recognizes that Daniel's testimony may well be necessary and that it is possible that Daniel will refuse to appear for a deposition in New York. However, these are not presumptions to be made by the court without any supporting evidence.
"[A] party seeking discovery of an out-of-state witness must first demonstrate that a reasonable effort has been made to obtain discovery through the usual channels before seeking the assistance of the court. The open commission is a practical and effective procedure to obtain discovery of an out-of-state witness but it is a burdensome and expensive procedure which often results in further litigation over the allocation of expenses"(Matter of Gerbig, NYLJ, Sept. 24, 1996, at 26, col 2 [Sur Ct, Westchester County]).
CONCLUSION
The motion is denied without prejudice to renew upon movant's submission of documents showing that an open commission is necessary.
This constitutes the decision and order of the court.
EDWARD W. McCARTY III
Judge of the
Surrogate's Court