In re the Estate of Keljikian

New York Surrogate's Court

In re the Estate of Keljikian

44 Misc. 2d 176, 253 N.Y.S.2d 238, 1964 N.Y. Misc. LEXIS 1394

CourtNew York Surrogate's Court

DecidedOctober 6, 1964

StatusPublished

Cited by2 cases

This text of 44 Misc. 2d 176 (In re the Estate of Keljikian) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Keljikian, 44 Misc. 2d 176, 253 N.Y.S.2d 238, 1964 N.Y. Misc. LEXIS 1394 (N.Y. Super. Ct. 1964).

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Opinion

Harry G. Herman, S.

In this contested accounting proceeding the attorney for the executors served a notice to take the deposition upon oral questions of Alma Eustigan, an objectant and legatee (CPLB 408, as amd. by L. 1964, ch. 477, eff. April 10, 1964; CPLB 3102, subd. [b]; 3101, subd. [a], par. [1]) with regard to the seventh objection to the account. Her objection is that the furs and perfumes, valued at $1,600 in Schedule “ E ” of the account and shown as a partial distribution in payment of her legacy, were, in fact, gifts given to her by the testatrix during her lifetime and are not part of the legacy to which she is entitled.

The objectant, by her attorney, now moves for a protective order (CPLB 3103, subd. [a]) to deny the taking of the deposition and to vacate the notice of the deposition upon the grounds that there are no special circumstances rendering it proper that such deposition be taken within the meaning of CPLB 3101 (subd. [a], par. [4]) and that “said witness” does not otherwise come within the scope of CPLB 3101 (subd. [a]).

The contention of the objectant is untenable. She is not a witness but a party. Consequently, CPLB 3101 (subd. [a], par. [4]) has no application. Since she is a party, there need be no showing of special circumstances to justify the taking of her deposition (CPLB 3101, subd. [a], par. [1]); Matter of Collins, 20 Misc 2d 283, 284; Matter of Kahn, 274 App. Div. 900).

The objectant further asks that, if the court does find that the executors are entitled to examine her, that the examination be conducted not in White Plains, but in Providence, Bhode Island, where she resides. However, the affidavit of the attorney [177]*177for the objectant “fails to disclose that it would be unduly burdensome or result in any serious inconvenience or unnecessary hardship to require [her] to appear in [Westchester] County for the examination ” (Drews v. Spencer, 274 App. Div. 802).

Accordingly, the motion for a protective order is, in all respects, denied.

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Harry G. Herman, S.

In this contested accounting proceeding the attorney for the executors served a notice to take the deposition upon oral questions of Alma Eustigan, an objectant and legatee (CPLB 408, as amd. by L. 1964, ch. 477, eff. April 10, 1964; CPLB 3102, subd. [b]; 3101, subd. [a], par. [1]) with regard to the seventh objection to the account. Her objection is that the furs and perfumes, valued at $1,600 in Schedule “ E ” of the account and shown as a partial distribution in payment of her legacy, were, in fact, gifts given to her by the testatrix during her lifetime and are not part of the legacy to which she is entitled.

The objectant, by her attorney, now moves for a protective order (CPLB 3103, subd. [a]) to deny the taking of the deposition and to vacate the notice of the deposition upon the grounds that there are no special circumstances rendering it proper that such deposition be taken within the meaning of CPLB 3101 (subd. [a], par. [4]) and that “said witness” does not otherwise come within the scope of CPLB 3101 (subd. [a]).

The contention of the objectant is untenable. She is not a witness but a party. Consequently, CPLB 3101 (subd. [a], par. [4]) has no application. Since she is a party, there need be no showing of special circumstances to justify the taking of her deposition (CPLB 3101, subd. [a], par. [1]); Matter of Collins, 20 Misc 2d 283, 284; Matter of Kahn, 274 App. Div. 900).

The objectant further asks that, if the court does find that the executors are entitled to examine her, that the examination be conducted not in White Plains, but in Providence, Bhode Island, where she resides. However, the affidavit of the attorney [177]*177for the objectant “fails to disclose that it would be unduly burdensome or result in any serious inconvenience or unnecessary hardship to require [her] to appear in [Westchester] County for the examination ” (Drews v. Spencer, 274 App. Div. 802).

Accordingly, the motion for a protective order is, in all respects, denied.

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Bluebook (online)

44 Misc. 2d 176, 253 N.Y.S.2d 238, 1964 N.Y. Misc. LEXIS 1394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-keljikian-nysurct-1964.

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