In re Estate of Cavallo

Appellate Division of the Supreme Court of New York

In re Estate of Cavallo

66 A.D.2d 675, 885 N.Y.S.2d 642

Appellate Division of the Supreme Court of the State of New York·Decided October 6, 2009·Published

Opinion

In a contested probate proceeding, the proponent of the will appeals from (1) an order of the Surrogate’s Court, Richmond County (Gigante, S.), dated June 4, 2008, and (2) a resettled order of the same court dated June 25, 2008, which granted the objectants’ motion for a protective order and to quash certain subpoenas.

Ordered that the appeal from the order is dismissed, as that order was superseded by the resettled order; and it is further,

Ordered that the resettled order is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents, payable by the appellant personally.

“A party seeking discovery from a nonparty witness must show special circumstances” (Tannenbaum v Tenenbaum, 8 AD3d 360 [2004]; see Lanzello v Lakritz, 287 AD2d 601 [2001]). Here, the appellant failed to establish special circumstances to justify her demand for nonparty disclosure, “since she failed to demonstrate that the information sought was otherwise unobtainable” (Schwarz v Schwarz, 227 AD2d 611, 612 [1996]; see Tannenbaum v Tenenbaum, 8 AD3d at 360; Matter of Validation Review Assoc. [Berkun—Schimel], 237 AD2d 614, 615 [1997]). Accordingly, the Surrogate’s Court properly granted the objectants’ motion for a protective order and to quash certain subpoenas. Dillon, J.P., Eng, Belen and Hall, JJ., concur.

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In a contested probate proceeding, the proponent of the will appeals from (1) an order of the Surrogate’s Court, Richmond County (Gigante, S.), dated June 4, 2008, and (2) a resettled order of the same court dated June 25, 2008, which granted the objectants’ motion for a protective order and to quash certain subpoenas.

Ordered that the appeal from the order is dismissed, as that order was superseded by the resettled order; and it is further,

Ordered that the resettled order is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents, payable by the appellant personally.

“A party seeking discovery from a nonparty witness must show special circumstances” (Tannenbaum v Tenenbaum, 8 AD3d 360 [2004]; see Lanzello v Lakritz, 287 AD2d 601 [2001]). Here, the appellant failed to establish special circumstances to justify her demand for nonparty disclosure, “since she failed to demonstrate that the information sought was otherwise unobtainable” (Schwarz v Schwarz, 227 AD2d 611, 612 [1996]; see Tannenbaum v Tenenbaum, 8 AD3d at 360; Matter of Validation Review Assoc. [Berkun—Schimel], 237 AD2d 614, 615 [1997]). Accordingly, the Surrogate’s Court properly granted the objectants’ motion for a protective order and to quash certain subpoenas. Dillon, J.P., Eng, Belen and Hall, JJ., concur.

In re Estate of Cavallo, 66 A.D.2d 675, 885 N.Y.S.2d 642 (N.Y. Ct. App. 2009).

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Opinion

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