Matter of Nicholson

2025 NY Slip Op 34595(U)

• Court: Surrogate's Court, New York County
• Decided: December 12, 2025
• Docket: File No. 2013-1194/F
• Status: Unpublished

Opinion

Matter of Nicholson 2025 NY Slip Op 34595(U) December 12, 2025 Surrogate's Court, New York County Docket Number: File No. 2013-1194/F 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. ENTERED SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DEC 1 2 2025 ------------------------------------------------------------------------x DATA ENTRY DEPT Nt:!\~.; Y01 ,< C.>i. ,, 1t,, (' In the Matter of the Accounting of James A. Nicholson - y ,,.1,J' i )~Fite'[; Court

and Justin M. Nicholson as Co-Trustees of the Trust Established under Section A of Article FOUR of the Will of DECISION and ORDER RONALD A. NICHOLSON, File No.: 2013-1194/F Deceased. ------------------------------------------------------------------------x MELLA, S.:

The following papers were considered on Petitioners' motion for a protective order:

Papers Considered Numbered Notice of Petitioners' Motion for a Protective Order with Affirmation of Anne C. Bederka, Esq., in Support, Attaching Exhibits 1, 2 Affirmation of Hillary A. Frommer, Esq., in Support of Cross-Motion, Attaching Exhibits and Proposed Order to Show Cause 3,4

At the call of a special calendar on October 28, 2025, in this first intermediate accounting

by James Nicholson (James) and Justin Nicholson (Justin) as Trustees of the marital trust

established under the will of their father, decedent Ronald Nicholson (the Marital Trust

Accounting), the court denied the Trustees' motion for the issuance of a protective order (CPLR

3103) to adjourn three scheduled depositions. The depositions at issue were Justin's as Co-

Trustee, scheduled for November 12 and 13, 2025, and those of two non-parties, Norma Taylor

and Laurie Hoffman, scheduled for October 30 and November 19, 2025, respectively

(collectively, Depositions).

The Marital Trust Accounting is one of three substantial, vigorously litigated matters

pending in this court, which pit James and Justin against decedent's surviving spouse, Patricia

Nicholson (Patricia). 1 Patricia has filed objections in the Marital Trust Accounting and in the

final accounting of James and Justin as Co-Executors of decedent's estate (Estate Accounting).

She is also battling James and Justin in their proceeding as Trustees of the Marital Trust in which

I Patricia is Justin's mother. James is a child from a prior relationship of decedent.

[* 1] they seek the court's advice and direction (see SCPA 2107) with respect to the allocation of taxes

incurred on the sale of certain real estate investments owned by the Marital Trust (Advice and

Direction Proceeding). The parties have completed discovery in the Estate Accounting and the

Advice and Direction Proceeding, and dispositive motions in each of these proceedings have

been filed.

In seeking to adjourn the Depositions, which had been scheduled pursuant to a stipulation

of the parties governing discovery that had been twice amended by them in the last several

months, the Trustees claimed that certain of Patricia's objections in the Marital Trust Accounting

were substantially similar to certain objections that Patricia made in the Estate Accounting.

They further claimed that resolution of such objections by the court in the Estate Accounting

may have preclusive effect on the similar objections in this Marital Trust Accounting, thereby

obviating the need for discovery with respect to them. The Trustees requested that the

Depositions be adjourned until after November 25, 2025, the date that the parties' dispositive

motions regarding Patricia's objections in the Estate Accounting were scheduled for oral

argument.

After hearing the parties' arguments, the court concluded that, on the record before it, the

Trustees' arguments were insufficient to meet their burden for the imposition of a protective

order. The court first noted that in Balsamello v Structure Tone, Inc. (226 AD3d 580 [ I st Dept

2024]), the Appellate Division made clear that "a court's power to limit otherwise proper use of

a disclosure device should be exercised only for the purpose of avoiding 'unreasonable

annoyance, expense, embarrassment, disadvantage or other prejudice"' (id at 582 [emphasis

added]). The court then determined that the Trustees had not demonstrated that proceeding with

the Depositions at issue would result in "unreasonable annoyance, expense, embarrassment,

[* 2] disadvantage, or other prejudice" that CPLR 3103(a) contemplates, particularly in view of the

parties' agreement as to a deposition schedule set for several months (see e.g. G.B. v Equinox

Holdings, Inc., 240 AD3d 842 [2d Dept 2025] [the party seeking a protective order bears the

burden of making a factual showing of "unreasonable annoyance, expense, embarrassment,

disadvantage, or other prejudice" (citation omitted, quoting CPLR 3103[a])]; Born to Build, LLC

v Saleh, 115 AD3d 780 [2d Dept 2014]).

Additionally, the court found that, given the advanced stage of discovery in this

proceeding, which has been pending for several years, the Trustees' concerns about the potential

preclusive effect of an oral ruling yet to be issued by the court were too speculative to justify a

protective order (Arch Ins. Co. v Delrie Constr. Co., Inc., 174 AD3d 560 [2d Dept 2019]

[conclusory assertions insufficient to warrant issuance of protective order]). Granting such relief

would only further delay the conclusion of discovery (cf Spancrete Northeast, Inc. v Travelers

lndem. Co., 99 AD2d 623, 624 [3d Dept 1984] [protective order not available as "a device of

bringing on a last-minute motion to avoid previously scheduled disclosure"]).

Finally, the court determined that, even if the outcome of the Estate Accounting might

bear on the resolution of certain objections in this proceeding, the Trustees have not shown that

the Depositions would fail to yield relevant information (see e.g. Pyfrom v Tishman Const. Co. of

New York, 270 AD2d 24, 24 [1st Dept 2000] [protective order not warranted where discovery is

not unreasonable or improper]; see also Norddeutsche Landesbank Girozentrale v Tilton, 165

AD3d 44 7 [1st Dept 2018]). Notably, because the time periods of the accountings for the

Marital Trust and the Estate do not overlap completely, the Trustees' actions during the period

covered by the Depositions would necessarily differ from the time frame at issue in the Estate

Accounting.

[* 3] For all these reasons, the court denied the Trustees' motion for a protective order

pursuant to CPLR 3103(a) and directed that the Depositions should proceed as scheduled unless

otherwise agreed to by the parties in writing.

As for Patricia's proposed cross-motion, brought by order to show cause, which sought to

lift the automatic discovery stay imposed under CPLR 3103(b) upon the filing of a motion for a

protective order, in view of the court's denial of the Trustees' motion, the stay is no longer in

effect, and the court declined to issue the proposed order to show cause as unnecessary.

This decision, together with the transcript of the October 28, 2025 proceedings,

constitutes the order of the court.

The Clerk of the Court shall email this Decision and Order to the parties listed below.

Dated: December 12, 2025 SURROGAT E

for Petitioners: Anne Bederka, Esq., at abederka@gss-law.com

for Objectant: Michael Hiller, Esq., at mhiller@hillerpc.com; and Hillary Frommer, Esq., at hfrommer@ef-law.com

[* 4]