In re the Estate of Gambardella

81 A.D.2d 835, 438 N.Y.S.2d 836, 1981 N.Y. App. Div. LEXIS 11499

Opinion

— In a proceeding, inter alia, to set aside a decree admitting a will to probate, petitioners appeal from so much of an order of the Surrogate’s Court, Westchester County, dated December 18, 1980, as limited the examination of the respondent and the production of records to the issue of whether the petitioners’ waivers and consents to probate were procured by fraud. Order affirmed insofar as appealed from, with $50 costs and disbursements, payable by the petitioners personally. The order appealed from is appealable since it limited the scope of discovery. It is not akin to a trial court ruling on specific questions objected to at an examination before trial (see CPLR 5701, subd [a], par 2, els [iv], [v]; cf. Spatz v Wide World Travel Serv., 70 AD2d 835). The limitation imposed by the Surrogate was proper, as the only evidence relevant to the issue at bar concerns facts relating to the alleged fraudulent procurement from the petitioners of the waivers and consents to probate. Mollen, P. J., Margett, O’Connor and Weinstein, JJ., concur.