In re the Estate of Othmer

Appellate Division of the Supreme Court of New York

In re the Estate of Othmer

250 A.D.2d 615, 671 N.Y.S.2d 687, 1998 N.Y. App. Div. LEXIS 4919

Appellate Division of the Supreme Court of the State of New York·Decided May 4, 1998·Published

Opinion

—In a proceeding pursuant to SCPA 1421 to determine the validity and effect of a [616]*616right of election under EPTL 5-1.1-A asserted by the guardian ad litem of Mildred Topp Othmer, who is the decedent’s surviving spouse, Wendell L. Quist, the court-appointed conservator, and Mary D. Seina, the court-appointed guardian for Mildred Topp Othmer, appeal from an order of the Surrogate’s Court, Kings County (Scholnick, S.), dated July 23, 1997, which, inter alia, granted the motions of Polytechnic University, the Long Island College Hospital, the Chemical Heritage Foundation, the Board of Regents of the University of Nebraska, and the Omaha Public School District to compel discovery from Wendell L. Quist and Mary D. Seina, and for the issuance of a commission pertaining to discovery from certain nonparty nonresident witnesses.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs payable by the appellants personally.

The Surrogate’s Court did not improvidently exercise its discretion in compelling Wendell L. Quist, Mary D. Seina, Anthony Seina, Dr. Susan G. Scholer, and Naree Pankey to provide the disclosure demanded by the respondents Polytechnic University, Long Island College Hospital, the Chemical Heritage Foundation, the Board of Regents of the University of Nebraska, and the Omaha Public School District, as it is “material and necessary” in the prosecution or defense of this action (CPLR 3101 [a]; Cilone v Willson Safety Prods., 229 AD2d 372).

The appellants’ remaining contentions are without merit. Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.

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—In a proceeding pursuant to SCPA 1421 to determine the validity and effect of a [616]*616right of election under EPTL 5-1.1-A asserted by the guardian ad litem of Mildred Topp Othmer, who is the decedent’s surviving spouse, Wendell L. Quist, the court-appointed conservator, and Mary D. Seina, the court-appointed guardian for Mildred Topp Othmer, appeal from an order of the Surrogate’s Court, Kings County (Scholnick, S.), dated July 23, 1997, which, inter alia, granted the motions of Polytechnic University, the Long Island College Hospital, the Chemical Heritage Foundation, the Board of Regents of the University of Nebraska, and the Omaha Public School District to compel discovery from Wendell L. Quist and Mary D. Seina, and for the issuance of a commission pertaining to discovery from certain nonparty nonresident witnesses.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs payable by the appellants personally.

The Surrogate’s Court did not improvidently exercise its discretion in compelling Wendell L. Quist, Mary D. Seina, Anthony Seina, Dr. Susan G. Scholer, and Naree Pankey to provide the disclosure demanded by the respondents Polytechnic University, Long Island College Hospital, the Chemical Heritage Foundation, the Board of Regents of the University of Nebraska, and the Omaha Public School District, as it is “material and necessary” in the prosecution or defense of this action (CPLR 3101 [a]; Cilone v Willson Safety Prods., 229 AD2d 372).

The appellants’ remaining contentions are without merit. Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.

In re the Estate of Othmer, 250 A.D.2d 615, 671 N.Y.S.2d 687, 1998 N.Y. App. Div. LEXIS 4919 (N.Y. Ct. App. 1998).

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