Matter of Landau 2025 NY Slip Op 31244(U) April 8, 2025 Surrogate's Court, New York County Docket Number: File No. 2023-2246 Judge: Rita Mella Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. New York County Surrogate's Court DATA ENTRY DEPT.
SURROGATE'S COURT OF THE STATE OF NEW YORK APR08 Jo:J!; COUNTY OF NEW YORK -------------------------------------------------------------------------x Probate Proceeding, Will of DECISION and ORDER EMILY FISHER LANDAU, File No.: 2023-2246 Deceased. -------------------------------------------------------------------------x MELLA, S.:
The court considered the following submissions in determining Respondent Hadley Fisher's renewed motion regarding the scope of pre-objection discovery:
Submissions Considered Numbered Respondent's Notice of Motion; Affidavit of Hadley Fisher in Support of Motion; Affirmation of Jennifer F. Hillman in Support of Motion, with Exhibits 1-3
Respondent's Memorandum of Law in Support of Motion 4
Affirmation of Taleah E. Jennings in Opposition to Motion, with Exhibits; Affidavit of Martin L. Edelman in Opposition to Motion 5-6
Petitioner's Memorandum of Law in Opposition to Motion 7
Reply Affirmation of Jennifer F. Hillman in Further Support of Motion, with Exhibits 8
Reply Memorandum of Law in Further Support of Motion 9
In this probate proceeding in the estate of Emily Fisher Landau, Decedent's grandson,
Hadley Fisher (Respondent), moved to expand the safe harbor provisions of SCPA 1404(4) and
EPTL 3-3.5 and the time frame for pre-objection SCPA 1404 discovery set forth in Section
207.27 of the Uniform Rules for Surrogate's Court [22 NYCRR], and to compel the production
of certain documents (CPLR 3124). At the call of the calendar on December 20, 2024, the court
granted the motion in part and denied it in part for the reasons stated below.
[* 1] Background
Decedent died on March 27, 2023, at the age of 102, leaving an estate in excess of $120
million. She was survived by her daughter, Candia Fisher (Candia), and eight grandchildren,
including Respondent, as her distributees. 1 As pertinent here, under the propounded instrument,
dated December 18, 2012, decedent left the majority of her testamentary assets to Candia either
outright or in trust. Decedent also provided for other family members, including these eight
grandchildren, five of whom receive $5 million bequests, with the others entitled to a portion of
the residuary estate. Preliminary letters testamentary issued on June 15, 2023, to the nominated
executors, Candia, William Zabel (the attorney-drafter), and Martin Edelman (decedent's long-
time advisor and attorney).
Only Respondent, who is among those grandchildren receiving a $5 million bequest,
requested SCP A 1404 discovery. In connection with such discovery, Respondent moved to
expand the applicable time frame for pre-objection discovery and sought leave to depose his
brother, Winston Fisher, so as not to trigger the propounded instrument's in terrorem clause (see
Uniform Rules for Surrogate's Court [NYCRR] § 207.27; SCPA 1404[4]; EPTL 3-3.5[b][3][D]).
The court denied the motion, finding that Respondent had failed to demonstrate the "special
circumstances" required for expansion of pre-objection discovery (see Matter of Landau, NYLJ,
Dec. 9, 2024, at 22, col 3 [Sur Ct, NY County]).
After Respondent obtained additional discovery pursuant to SCPA 1404, he filed the
instant motion, which again asked the court to expand the time frame and scope of pre-objection
1 Decedent had ten grandchildren, but only the eight children of decedent's predeceased sons, Richard and Anthony,
are distributees (see EPTL 4-1.1). The other two grandchildren are Candia's children. 2
[* 2] SCPA 1404 discovery. Specifically, Respondent sought permission to examine "the
circumstances surrounding the administration" of the estate of Respondent's father, Richard
Fisher, who died in 2006, and "the execution of a 2008 version of Decedent's will" and to
depose five additional individuals who are not among those who fall within the safe harbor
provisions of SCPA 1404[4] and EPTL 3-3.5[b][3][D]. In addition, Respondent asked the court
to compel the production of documents related to "Decedent's assets and gift giving."2
Discussion
As set forth in Section 207.27 of the Uniform Rules for Surrogate's Court [22 NYCRR],
discovery in probate proceedings is generally limited "to a three-year period prior to the date of
the propounded instrument and two years thereafter, or to the date of decedent's death,
whichever is the shorter period" (3-2 Rule Period) unless "special circumstances" are shown.
What constitutes "special circumstances" is a matter that falls squarely within the court's
discretion (see Matter of Constant, 128 AD3d 419 [1st Dept 2015]). Courts have found "special
circumstances" justifying the expansion of the 3-2 Rule Period when evidence in the record
raises a concern that the will was the product of undue influence, duress or fraud (see Matter of
Liebowitz, NYLJ, Feb. 18, 2016, at 22, col 3 [Sur Ct, NY County]), and the facts support
allegations of scheming or defrauding by the proponent or beneficiaries or a continuing course of
conduct suggesting undue influence or abuse of the testator's finances (see e.g. Matter of Po Jun
2 Although Respondent characterized the motion as a "renewed motion" based on "newly discovered
evidence," he did not cite the operative statute for motions to renew, CPLR 222 l(e), or ask the court to revisit its denial of his prior motion to expand the timing and scope of pre-objection SCPA 1404 discovery based on such "newly discovered evidence." Instead, Respondent sought to expand pre- objection SCPA 1404 discovery to obtain information that was not sought in the prior motion and to compel the production of certain documents. Accordingly, the court will treat the instant motion as unrelated to the prior one. 3
[* 3] Chin, 55 Misc 3d 1092 [Sur Ct, Queens County 2017]; Matter of Partridge, 141 Misc 2d 159
[Sur Ct, Rockland County 1988]; Matter a/Sabin, NYLJ, Jan. 22, 2015, at 30, col 3 [Sur Ct,
Suffolk County]).
The court granted that part of the motion which sought an order expanding the 3-2 Rule
Period to allow for discovery related to the circumstances surrounding the drafting and execution
of decedent's 2008 will. The court found that Respondent established that "special
circumstances" warranted the expansion of the relevant time period to take such limited
discovery beginning from the date Respondent's father died in 2006 until the beginning of the 3-
2 Rule Period, i.e. three years prior to December 18, 2012, the date of the propounded
instrument. However, with respect to Respondent's request that the court expand the 3-2 Rule
Period to allow him to inquire about the administration of the estate of Respondent's father, the
court found that Respondent had failed to present facts that would support a finding of "special
circumstances" to justify deviating from the 3-2 Rule Period.
The court also denied that portion of the motion which sought an order permitting
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Matter of Landau 2025 NY Slip Op 31244(U) April 8, 2025 Surrogate's Court, New York County Docket Number: File No. 2023-2246 Judge: Rita Mella Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. New York County Surrogate's Court DATA ENTRY DEPT.
SURROGATE'S COURT OF THE STATE OF NEW YORK APR08 Jo:J!; COUNTY OF NEW YORK -------------------------------------------------------------------------x Probate Proceeding, Will of DECISION and ORDER EMILY FISHER LANDAU, File No.: 2023-2246 Deceased. -------------------------------------------------------------------------x MELLA, S.:
The court considered the following submissions in determining Respondent Hadley Fisher's renewed motion regarding the scope of pre-objection discovery:
Submissions Considered Numbered Respondent's Notice of Motion; Affidavit of Hadley Fisher in Support of Motion; Affirmation of Jennifer F. Hillman in Support of Motion, with Exhibits 1-3
Respondent's Memorandum of Law in Support of Motion 4
Affirmation of Taleah E. Jennings in Opposition to Motion, with Exhibits; Affidavit of Martin L. Edelman in Opposition to Motion 5-6
Petitioner's Memorandum of Law in Opposition to Motion 7
Reply Affirmation of Jennifer F. Hillman in Further Support of Motion, with Exhibits 8
Reply Memorandum of Law in Further Support of Motion 9
In this probate proceeding in the estate of Emily Fisher Landau, Decedent's grandson,
Hadley Fisher (Respondent), moved to expand the safe harbor provisions of SCPA 1404(4) and
EPTL 3-3.5 and the time frame for pre-objection SCPA 1404 discovery set forth in Section
207.27 of the Uniform Rules for Surrogate's Court [22 NYCRR], and to compel the production
of certain documents (CPLR 3124). At the call of the calendar on December 20, 2024, the court
granted the motion in part and denied it in part for the reasons stated below.
[* 1] Background
Decedent died on March 27, 2023, at the age of 102, leaving an estate in excess of $120
million. She was survived by her daughter, Candia Fisher (Candia), and eight grandchildren,
including Respondent, as her distributees. 1 As pertinent here, under the propounded instrument,
dated December 18, 2012, decedent left the majority of her testamentary assets to Candia either
outright or in trust. Decedent also provided for other family members, including these eight
grandchildren, five of whom receive $5 million bequests, with the others entitled to a portion of
the residuary estate. Preliminary letters testamentary issued on June 15, 2023, to the nominated
executors, Candia, William Zabel (the attorney-drafter), and Martin Edelman (decedent's long-
time advisor and attorney).
Only Respondent, who is among those grandchildren receiving a $5 million bequest,
requested SCP A 1404 discovery. In connection with such discovery, Respondent moved to
expand the applicable time frame for pre-objection discovery and sought leave to depose his
brother, Winston Fisher, so as not to trigger the propounded instrument's in terrorem clause (see
Uniform Rules for Surrogate's Court [NYCRR] § 207.27; SCPA 1404[4]; EPTL 3-3.5[b][3][D]).
The court denied the motion, finding that Respondent had failed to demonstrate the "special
circumstances" required for expansion of pre-objection discovery (see Matter of Landau, NYLJ,
Dec. 9, 2024, at 22, col 3 [Sur Ct, NY County]).
After Respondent obtained additional discovery pursuant to SCPA 1404, he filed the
instant motion, which again asked the court to expand the time frame and scope of pre-objection
1 Decedent had ten grandchildren, but only the eight children of decedent's predeceased sons, Richard and Anthony,
are distributees (see EPTL 4-1.1). The other two grandchildren are Candia's children. 2
[* 2] SCPA 1404 discovery. Specifically, Respondent sought permission to examine "the
circumstances surrounding the administration" of the estate of Respondent's father, Richard
Fisher, who died in 2006, and "the execution of a 2008 version of Decedent's will" and to
depose five additional individuals who are not among those who fall within the safe harbor
provisions of SCPA 1404[4] and EPTL 3-3.5[b][3][D]. In addition, Respondent asked the court
to compel the production of documents related to "Decedent's assets and gift giving."2
Discussion
As set forth in Section 207.27 of the Uniform Rules for Surrogate's Court [22 NYCRR],
discovery in probate proceedings is generally limited "to a three-year period prior to the date of
the propounded instrument and two years thereafter, or to the date of decedent's death,
whichever is the shorter period" (3-2 Rule Period) unless "special circumstances" are shown.
What constitutes "special circumstances" is a matter that falls squarely within the court's
discretion (see Matter of Constant, 128 AD3d 419 [1st Dept 2015]). Courts have found "special
circumstances" justifying the expansion of the 3-2 Rule Period when evidence in the record
raises a concern that the will was the product of undue influence, duress or fraud (see Matter of
Liebowitz, NYLJ, Feb. 18, 2016, at 22, col 3 [Sur Ct, NY County]), and the facts support
allegations of scheming or defrauding by the proponent or beneficiaries or a continuing course of
conduct suggesting undue influence or abuse of the testator's finances (see e.g. Matter of Po Jun
2 Although Respondent characterized the motion as a "renewed motion" based on "newly discovered
evidence," he did not cite the operative statute for motions to renew, CPLR 222 l(e), or ask the court to revisit its denial of his prior motion to expand the timing and scope of pre-objection SCPA 1404 discovery based on such "newly discovered evidence." Instead, Respondent sought to expand pre- objection SCPA 1404 discovery to obtain information that was not sought in the prior motion and to compel the production of certain documents. Accordingly, the court will treat the instant motion as unrelated to the prior one. 3
[* 3] Chin, 55 Misc 3d 1092 [Sur Ct, Queens County 2017]; Matter of Partridge, 141 Misc 2d 159
[Sur Ct, Rockland County 1988]; Matter a/Sabin, NYLJ, Jan. 22, 2015, at 30, col 3 [Sur Ct,
Suffolk County]).
The court granted that part of the motion which sought an order expanding the 3-2 Rule
Period to allow for discovery related to the circumstances surrounding the drafting and execution
of decedent's 2008 will. The court found that Respondent established that "special
circumstances" warranted the expansion of the relevant time period to take such limited
discovery beginning from the date Respondent's father died in 2006 until the beginning of the 3-
2 Rule Period, i.e. three years prior to December 18, 2012, the date of the propounded
instrument. However, with respect to Respondent's request that the court expand the 3-2 Rule
Period to allow him to inquire about the administration of the estate of Respondent's father, the
court found that Respondent had failed to present facts that would support a finding of "special
circumstances" to justify deviating from the 3-2 Rule Period.
The court also denied that portion of the motion which sought an order permitting
Respondent to take additional depositions during the pre-objection discovery phase. The court
noted that Respondent was required to show "special circumstances" in order for the court to
allow the examinations, and Respondent did not make the necessary showing that these
individuals had information concerning the validity of the propounded instrument "that is of
substantial importance or relevance to a decision to file objections" to probate (SCPA 1404[4];
EPTL 3-3.5[b][3][D]).
Finally, the court granted Respondent's motion to compel the production of documents
[* 4] to the extent that the Preliminary Executors were directed to produce decedent's gift tax returns
and documents related to decedent's charitable giving within the 3-2 Rule Period. The
Preliminary Executors having consented, the court also directed the Preliminary Executors to
provide Respondent's counsel with the net value of distributable assets, based on the disclosures
made on the estate's federal tax return, as filed.
This decision, together with the transcript of the December 20, 2024 proceedings,
constitutes the order of the court.
The Clerk of the Court is directed to email a copy of this Decision and Order to counsel
of record, whose names and email addresses appear below.
Dated: April 8, 2025 SU~ATE
To:
Jennifer Hillman, Esq. - Jennifer.Hillman@rivkin.com John Morken, Esq. - jmorken@farrellfritz.com
[* 5]