In re the Estate of Rothko

42 A.D.2d 558, 345 N.Y.S.2d 567, 1973 N.Y. App. Div. LEXIS 4014

Opinion

Order, Surrogate’s Court, New York County, entered April 5, 1973, denying motion of Attorney-General for protective order and granting cross motion directing examination of Attorney-General, unanimously reversed, on the law and in the exercise of discretion, and cross petitioner appellant’s motion for a protective order vacating the notices to examine him granted, and the cross motion denied. Cross petitioner appellant shall recover of respondents-respondents Reis and Stamos and The Mark Rothko Foundation, Inc., $40 costs and disbursements of this appeal. In this proceeding to remove executors it is sought to examine the Attorney-General by his assistant in charge of the matter as an adverse party. While nominally a party, in fact the Attorney-General appears only as the statutory representative of ultimate beneficiaries of charitable bequests under the will (EPTL 8-1.1, subd. [f]). As such, he may be examined only upon a showing of special or unusual circumstances and none are demonstrated (People v. Volkswagen of Amer. 41 A D 2d 827). Concur — Markewich, J. P., Murphy, Lane, Tilzer and Macken, JJ.