In re the Estate of Stonchius

209 A.D.2d 705, 619 N.Y.S.2d 960, 1994 N.Y. App. Div. LEXIS 11684

Opinion

—In a proceeding pursuant to SCPA 2222 to withdraw funds on deposit with the Comptroller of the State of New York, the Attorney-General and the Comptroller of the State of New York appeal (1) as limited by their brief, from stated portions of an order of the Surrogate’s Court, Kings County (Bloom, S.), dated June 8, 1994, which, inter alia, granted the motion of the petitioner for leave to depose certain witnesses in Lithuania and elsewhere upon open commissions pursuant to CPLR 3108, and (2) from an order of the same court, dated June 23, 1994, which denied their motion to resettle the recital paragraphs of the order dated June 8, 1994, to reflect that they submitted papers in opposition to the petitioner’s motion.

Ordered that the order dated June 23, 1994, is reversed, on the law, without costs or disbursements, and the motion to resettle the order dated June 8, 1994, is granted; and it is further,

Ordered that the order dated June 8, 1994, is resettled by adding to the second paragraph thereof, after the words "in support of the application”, the following language: "and the affidavit of Susan Glover, sworn to the 18th day of May, 1994, and all exhibits submitted in connection therewith, in opposition to the application”; and it is further,

Ordered that the order dated June 8, 1994, is modified by adding thereto the following provision: "ordered that each person receiving an advance towards his or her expenses is directed to fly coach/economy class and to obtain a hotel room no higher than 'standard grade’ ”; and it is further,

Ordered that the order dated June 8, 1994, as so resettled and modified, is affirmed insofar as appealed from, without costs or disbursements.

The appellants are entitled to resettlement of the recital paragraphs of the order dated June 8, 1994, to reflect the fact that they submitted papers in opposition to the petitioner’s motion (see, CPLR 2219 [a]; Matter of Gailiunas, 209 AD2d 697 [decided herewith]; Glickman v Sami, 146 AD2d 671).

Moreover, while the petitioner submitted sufficient evidence to sustain the Surrogate’s authorization of open commissions, we find it appropriate to modify that order by placing reasonable restrictions upon the expenses associated with the taking of depositions pursuant to the open commissions (see, Matter of Gailiunas, supra). Sullivan, J. P., Balletta, Joy and Altman, JJ., concur.