Matter of Reinbold

Matter of Reinbold 2025 NY Slip Op 30268(U) January 17, 2025 Surrogate's Court, New York County Docket Number: File No. 2021-1590/B 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 JANl 7 )cJs- COUNTY OF NEW YORK -------------------------------------------------------------------------x In the Matter of the Petition of Christian Beliard as Temporary Administrator of the Estate of DECISION and ORDER ANDREE REINBOLD, File No.: 2021-1590/B Deceased

To Compel the Turnover of Property of the Estate Pursuant to SCPA 2103 -------------------------------------------------------------------------x MELLA, S.:

The court considered the following submissilns in deciding this motion to compel response to discovery demands and for the impositi{~ of sanctions for failure to comply:

Papers Considered Numbered

Notice of Motion to Compel, dated September 24, 2024, and Affirmation in Support of Motion by Steven Guerra, Esq., with Exhibits 1,2

In this contested turnover proceeding in the estate of Andree Reinbold, the Temporary

Administrator, Christian Beliard (Petitioner), moves for an order compelling respondent Robert

Fitzsimmons (Respondent) to respond to Petitioner's First Set oflnterrogatories and Demand for

Documents and then appear for a deposition (CPLR 3124), and, if Respondent fails to comply

with such order, entering a judgment by default against Respondent or striking his Answer

(CPLR 3126).

In the underlying proceeding, Petitioner seeks turnover of $486,567.27 and any other

property Respondent may have collected or withdrawn from decedent's bank accounts while

acting as his attorney-in-fact. After Respondent filed an Answer asserting certain affirmative

defenses, the court held a conference at which counsel for the parties appeared. Thereafter, the

court issued a Pre-Trial Order on June 3, 2024 (Pre-Trial Order), that established specific [* 1]

deadlines for document production and examinations before trial, and set September 9, 2024, as

the deadline for the completion of all discovery. The Pre-Trial Order also provided that the

failure to comply with its terms could result in sanctions, including the "issuance of a default

judgment or decree." After Respondent failed to respond to Petitioner's timely discovery

demand, and the deadline for completion of discovery passed, Petitioner made the instant

motion, and Respondent defaulted.

In support of his motion, counsel for Petitioner filed an affirmation in which he detailed

his good faith efforts to resolve all discovery issues with Respondent's counsel (see 22 NYCRR

§202.7[a]). Counsel affirms that that Respondent was served with the discovery demands at

issue, in compliance with the Pre-Trial Order, and that, notwithstanding numerous efforts to

communicate with Respondent's counsel, to date, no responses or documents have been provided

to Petitioner. Petitioner's counsel also affirms that Respondent was served with a Notice of

Deposition with a proposed date, which date was adjourned on consent at the request of

Respondent's counsel due to a scheduling conflict. According to Petitioner's counsel, however,

he was unable to reschedule the deposition because Respondent's counsel failed to respond to

any of his subsequent communications.

A party seeking disclosure may move to compel compliance for failure to respond or

comply with a discovery demand (see CPLR 3124). The standard for evaluating such motion is

whether the sought after discovery is "material and necessary" to the prosecution or defense of

an action (see CPLR 3101[a]). "What constitutes 'material and necessary' should be construed

liberally to require disclosure of any facts bearing on the controversy which assist by sharpening

the issues and reducing delay" (Polygram Holding, Inc. v Cafaro, 42 AD3d 339, 340-341 [1st

Dept 2007]).

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Here, the record establishes that Respondent did not respond to Petitioner's First Set of

Interrogatories and Demand for Documents and did not appear for his deposition after being duly

noticed, and he did so without objecting (see CPLR 3122) or seeking a protective order regarding

any discovery he believed improper (see CPLR 3103). Under these circumstances and given that

discovery sought appears to be reasonably calculated to obtain information that is "material and

necessary" to the prosecution of Petitioner's claim, Petitioner's unopposed motion to compel is

granted to the extent that Respondent is directed to respond to Petitioner's First Set of

Interrogatories and Demand for Documents and produce the requested documents and

information within twenty days of the date that this Decision and Order is served upon his

counsel, with Notice of Entry. Respondent is further directed to appear for a deposition within

thirty days of producing the requested documents and information at a date and time noticed by

Petitioner.

As for that part of the motion that requests that, pursuant to CPLR 3126, the court enter a

judgment on default against Respondent or strike Respondent's Answer should the motion to

compel be granted and Respondent fails to comply with this court's order, a court may impose

sanctions when a party "refuses to obey an order for disclosure or willfully fails to disclose

information which the court finds ought to have been disclosed" (see CPLR 3126). The "nature

and degree" of any penalty is a matter within the court's discretion (Han v New York City Tr. Auth.,

169 AD3d 435 [1st Dept 2019], citing Kihl v Pfeffer, 94 NY2d 118, 122 [1999]). In determining

what, if any, sanction is appropriate on a motion pursuant to CPLR 3126, courts regularly condition

sanctions upon a party's failure to comply with discovery obligations within a specific time frame

(see e.g. Garcia v Defex, 59 AD3d 183 [1st Dept 2009] [affirming conditional order imposing

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sanctions where party had, among other things, failed to meet discovery obligations and failed to

object or seek a protective order]).

The uncontroverted record before the court demonstrates that Respondent ignored every

discovery deadline set forth in the Pre-Trial Order. Thereafter, he did not offer any excuse for his

non-compliance with the Pre-Trial Order and then defaulted on the instant motion, which asked

the court, in essence, to grant the Petition on default, if Respondent again failed to meet his

discovery obligations. Respondent did so even though the Pre-Trial Order specifically noted that

the failure to comply could result in sanctions. Under these circumstances, the court concludes that

a conditional sanctions order is warranted. Accordingly, that part of the motion that seeks relief

under CPLR 3126 is granted to the extent that, if Respondent fails to comply with Petitioner's First

Set of Interrogatories and Demand for Documents within the period of time established by this

Decision and Order, Respondent's answer will be stricken upon Petitioner's serving and filing an

affirmation of counsel reporting Respondent's non-compliance.

This decision constitutes the order of the court.

The Clerk of the Court is directed to send a copy of this Decision and Order to counsel of

record at the addresses below by regular mail and email.

Dated: January 17, 2025

TO:

Steven Guerra, Esq. Paul O'Brien, Esq. Attorney for Petitioner Attorney for Respondent 42 West Street, Third Floor 10 Bay Shore Avenue, Unit 5711 Brooklyn, New York 11222 Bay Shore, NY 11 706 stevenlmstevernrnerralaw .com oaul(n)obriennllc.com

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