Andiero Partners, L.P. v. Duggan

Andiero Partners, L.P. v Duggan 2007 NY Slip Op 34617(U) January 19, 2007 Surrogate's Court, New York County Docket Number: File No. 1147/2000 Judge: Anderson, S. 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.

SURROGATE'S COURT: NEW YORK COUNTY --------- --------- --------- --------- -X Andiero Partners , L.P., JAN 2 2 2007 Plaintif f, File No. 1147/2000 -against-

GLORIA DUGGAN, both individu ally and in her capacity as executrix of the Estate of Robert E. Kelly, ·::: c:., -- , C.' --<. ::.0 Defendan t .- (.fl --;

--------- --------- --------- --------- -x R O T H , S .

In an action transferr ed from the Supreme Court relating to

the estate of Robert E. Kelly, plaintiff Andiero Partners, L.P.

(the "partners hip"}, seeks partial summary judgment on certain

of its claims against Gloria Duggan, individu ally and as

executrix of decedent 's estate, concernin g a $500,000 insurance

policy on decedent 's life. Duggan cross-mov es for various

relief, including summary judgment on the claims against her

individua lly and the disqualif ication of the law firm

represent ing the partnersh ip.

The relevant facts are as follows. Testator died on March

12, 2000, at the age of 62, survived by three children. Under

his will, which was admitted to probate, Mr . Kelly left $100,000

to each of his children and the residue to Duggan, who was named

executrix . [* 1]

At the time of his death, decedent was the general partner

of Andiero, a limited partnership that he established in 1978

for the purpose of investing in securities. The record

establishes that, for at least ten years before decedent died,

the partnership was the owner and designated beneficiary of a

$500,000 insurance policy on his life, paid the annual premiums

for the policy and touted to prospective investors the existence

of such policy (without identifying it specifically) in

Confidential Offering Memoranda dated December 1997 and June

1998.

The reason for the initial purchase of the policy is not

clear from the record. Based on the reference to an insurance

policy on decedent's life in the Confidential Offering

Memoranda, it would appear that the policy was "key man"

insurance intended to protect the partnership in the event of

the death of the general partner. According to Duggan, though,

the policy was intended to secure any debts that decedent might

have owed to the partnership as a result of advances he would

often take against future compensation. It is observed in this

regard, however, that, as the owner and designated beneficiary

of the policy, the partnership would have had no legal

obligation to use the policy's proceeds to satisfy the general

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partner's indebtedness to it absent an agreement (to which

Duggan makes no reference).

Nonetheless, it is undisputed that, on June 7, 1999,

shortly after he had been diagnosed with pancreatic cancer,

decedent, in his capacity as general partner, assigned ownership

of the policy to himself individually. Upon such transfer,

decedent personally assumed payment of the policy's premiums and

then changed the designation of beneficiary from the partnership

to Duggan.

After decedent's death, Duggan in her individual capacity

collected the proceeds of the policy as beneficiary. The

partnership, claiming that decedent's transfer of the policy had

been improper, commenced an action against Duggan as

representative of the estate (on the theory that decedent's

transfer of the policy was a breach of fiduciary duty and an act

of conversion) and against Duggan individually (on the theory

that she had been unjustly enriched by the policy's proceeds).

The complaint, filed in Supreme Court, New York County, also

included various other claims against Duggan (as executrix) that

are unrelated to the insurance policy and are not at issue on

these motions.

The partnership obtained a temporary restraining order in

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the Supreme Court prohibiti ng any dispositi on of the policy's

proceeds . Eventual ly a consent order was signed providing for

the proceeds of the policy, less $63,161 that Duggan

acknowled ged she had spent (before the restraini ng order was

issued), to remain under a restrain t pending the outcome of the

proceedin g.

Duggan, in her capacity as executrix , then asked this court

to consent to the transfer of the action {SCPA 501[1]). As part

of the same motion, Duggan also requested the "issuance of

citation in a SCPA 2103 proceedin g for turnover ," alleging that

the partnersh ip was withholdi ng from the estate the proceeds of

an IRA and pension plan of which decedent had designate d the

estate the beneficia ry. Although the court consented to the

transfer of the action, because Duggan's request by motion for

the issuance of a citation was procedur ally defective and did

not initiate a discovery proceedin g, the decision noted that,

notwithst anding Duggan's allegatio ns regarding the IRA and the

pension plan, "she had not yet commenced " such a proceedin g

(Matter of Kelly, NYLJ, Mar. 14, 2002, at 21, col 3).

According ly, no citation issued.

Thereafte r, the partnersh ip's action was transferr ed to

this court (Andiero Partners, L.P. v Duggan, Sup. ct., NY

4 [* 4]

County, Mar . 18, 2002, Kahn, J., Index No. 601227/01). Duggan

then answered the complaint (in her fiduciary and individual

capacities) and, as relevant for present purposes, she

interposed a counterclaim as executrix, in essence repeating the

allegations that the partnership was withholding from the estate

the proceeds of the IRA and pension plan.

Although it is not clear from Duggan's counterclaim , the

record shows that the IRA and pension plan held limited

partnership interests that were liquidated after decedent's

death and placed in a segregated account under the partnership 's

control. Why the partnership did not immediately remit such

funds to the custodian of the IRA and trustee of the pension

plan cannot be determined from the record. What can be

determined, however, is that Duggan, as executrix, requested

that the funds be turned over to the estate, but the

partnership, apparently concerned about its liability as

stakeholder, refused, absent some confirmation from the

fiduciaries of the pension plan and IRA that the estate was, in

fact, the designated beneficiary.

After unsuccessfu l settlement negotiations , the partnership

made the instant motion for partial summary judgment on four of

its six causes of action relating to the insurance policy.

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sum mar y judg men t on 1) its Spe cifi cal ly, the par tne rsh ip see ks (ind ivid ual ly and as firs t cau se of act ion aga ins t Dug gan reco ver y, but app ears to fidu cia ry) , whi ch cite s no the ory for ged in the com plai nt, 2) be bas ed on the wro ngf ul con duc t alle gan as exe cut rix, whi ch its thir d cau se of act ion aga ins t Dug fidu cia ry dut y, 3) its fou rth alle ges tha t dec ede nt bre ach ed his ual ly, whi ch alle ges tha t cau se of act ion aga ins t Dug gan ind ivid pol icy 's pro cee ds and 4) she has bee n unj ust ly enr ich ed by the

ins t Dug gan ind ivid ual ly, its fift h cau se of act ion , also aga

osit ion of a con stru ctiv e whi ch seek s an acc oun ting , the imp er, all wit h res pec t to the tru st and the app oint men t of a rec eiv

proc eed s of the pol icy . s-m ove d for var iou s Dug gan has opp ose d the mot ion and cros ks sum mar y judg men t reli ef. In her ind ivid ual cap acit y, she see

of whi ch rel ate to the dism issi ng the clai ms aga ins t her (all tive , an ord er com pell ing insu ranc e pol icy) or, in the alte rna din g disc ove ry dem ands , the par tne rsh ip to com ply wit h out stan tne rsh ip's cou nse l, Bee rma n & and the dis qua lifi cat ion of the par con flic t of inte res t and Deu tsch , LLP , bas ed upo n a pur por ted

th e adv oca te wit nes s dis qua lifi cat ion rule s. As exe cut rix, she

pen sion pla n and IRA . seek s sum mary judg men t rela ting to the par tne rsh ip's mot ion Wit h this bac kgro und , we turn to the

6 [* 6]

for summa ry judgm ent. It is said that summa ry judgme nt is a

drasti c remedy and should be grante d only when it is clear that

no mater ial issues of fact exist (see e.g. Rotuba Extrud ers,

Inc. v Ceppos , 46 NY2d 223; Andre v Pomero y, 35 NY2d 361). The

party seekin g summar y judgme nt must presen t suffic ient eviden ce

to demon strate the absenc e of any mater ial issues of fact (see

~ Alvare z v Prospe ct Hosp., 68 NY2d 320; Wineg rad v New York

univ. Med. Ctr., 64 NY2d 851). Howev er, once the requis ite

proof has been submi tted, the burden is on the party opposi ng

summar y judgme nt either to come forwar d with proof, in

eviden tiary form, suffic ient to show that movan t is not entitl ed

to judgme nt as a matter of law or to demon strate an accept able

excuse for his failur e to tender such proof (Zucke rman v City of

New York, 49 NY2d 557).

The primar y basis for the partne rship' s motion is its

assert ion that, as a matter of law, decede nt breach ed his

fiduci ary obliga tions to his limite d partne rs when, in his

capaci ty as genera l partne r, he assign ed owners hip of the policy

at issue to himsel f indivi dually and therea fter change d the

benefi ciary design ation to Duggan . Accord ing to the

partne rship, decede nt not only depriv ed his partne rs of the

protec tion of an insura nce policy , but did so in the knowle dge

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that he was seriousl y ill, i.e., that the policy could not be

replaced and likely would bear fruit for its benefici ary in the

near future. Duggan then benefite d from deceden t's wrongdoi ng

by collectin g the proceeds of the policy.

The record is clear, however, that, prior to seeking

summary judgment , the partners hip had not responde d to Duggan's

discovery demands relating to the insuranc e policy. Moreover ,

the partnersh ip concedes that at the time the motion was made,

the parties had agreed to stay discover y pending settleme nt

negotiati ons. The partners hip attempts to explain the timing of

the motion by assertin g that it was prompted by Duggan's failure

to negotiate in good faith. Even assuming , however, that Duggan

had some duty to negotiat e in a certain way and violated that

duty, the partners hip provides no authority for the proposit ion

that such a fact would terminate Duggan's right to discovery .

Duggan argues that, under these circumst ances, summary

judgment is prematur e, citing CPLR 3212(f), which provides that

"[s]hould it appear from affidavi ts submitted in oppositio n to

the motion that facts essentia l to justify oppositio n may exist

but cannot be stated, the court may deny the motion . "

Since, contrary to the partners hip's contentio n, this is not a

situation where the party availing itself of CPLR 3212{f) "has

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failed to ascertain the facts due to its own inaction" (Meath v

Mishrick, 68 NY2d 992, 994) the issue is simply whether Duggan

has met the requirement s of CPLR 3212(f).

In such regard, it is observed initially that the papers

submitted by Duggan (both individuall y and as executrix) fail in

many respects to address the relevant issues. For example, a

significant portion of such papers is devoted to arguments that

appear to be related only to the partnership 's second cause of

action for conversion and, specificall y, whether a term life

insurance policy, which by its nature has no cash surrender

value, can be the subject of a conversion claim. However, since

the partnership does not seek summary judgment on that claim,

Duggan's extensive arguments concerning the need for discovery

in such connection are irrelevant.

Nonetheless , Duggan has shown a sufficient need for

discovery concerning the insurance policy and the circumstanc es

of its transfer in relation to the breach of fiduciary claim.

At the very least, Duggan is entitled to discovery to prove her

contention (which the partnership disputes) that decedent

transferred the policy in good faith with "full knowledge" of

the partnership . One argument made by the partnership in this

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is the clai m that rega rd requ ires brie f disc ussi on and that

all of the lim ited Dug gan cann ot, as a mat ter of law, show that

she, as a lim ited part ners con sent ed to the tran sfer beca use

er obta ined her con sent part ner her self , adm its that dece dent nev

befo re he made the tran sfer . How ever , beca use the tran sfer

ion can be pres ume d ben efit s Dug gan, her con sent to the tran sact NY2 d 792) and is (see Mat ter of Kels ey, 29 AD2d 450, affd 26

this law suit . The conf irme d in any even t by her pos itio n in

con sent ed and, as to issu e is whe ther the othe r limi ted part ners

that issu e, ther e has been no disc ove ry . rele van ce of Mor eove r, alth oug h Dugg an misa ppre hend s the e.g. S.H. and Hele n the busi ness judg men t rule to this case (see ocs. , 179 AD2d 65 R. Sche uer Fam ily Fou ndat ion, Inc. v 61 Ass inap plic able whe re [not ing that the busi ness judg men t rule is , she nev erth eles s ther e exis ts a pote ntia l for self -int ere st]) sact ion was in any has the righ t to try to prov e that the tran 258 AD2d 401 [whe re even t fair and prop er (se e~ Wolf v Rand , th a tran sact ion is e busi ness judg men t rule does not appl y and

ther efor e subJ 'ect to JU · 1 scru tiny , the burd en is on the · d'1c1a

fidu ciar y to show the prop ri'et y of the tran sact ion] ; see also

Levi ne v Levi ne, 184 AD2d 53,· Limm er v Med allio n Grou p, Inc. , 75 ry AD2d 299) . And agai n, sinc e Dugg an has not had disc ove

10 [* 10]

concer ning the insura nce policy , she has not had the oppor tunity

to gather whatev er eviden ce she can in that regard .

Whethe r after discov ery Duggan will be able to establ ish

that there exists a genuin e factua l issue concer ning the

propri ety of deced ent's conduc t is questi onable . Never theless ,

in consid ering a motion for summar y judgme nt, the facts must be

viewed in the light most favora ble to the nonmov ing party who

must be afford ed the benefi t of every reason able infere nce (see

~ Dauman Displa ys, Inc. v Mastur zo, 168 AD2d 204). And, in

this connec tion (parti cularl y given the partne rship' s decisi on

to short- circui t discov ery and move for summar y judgme nt), it

cannot be said based on the record that, as a matter of law,

there are no circum stance s under which Duggan could create a

factua l issue concer ning the propri ety of the policy 's transf er.

Accord ingly, the partne rship's motion for summar y judgme nt

agains t Duggan as execut rix is denied withou t prejud ice.

Becaus e the partne rship's motion for summar y judgme nt agains t

Duggan indivi dually is also predic ated on a determ ination that

decede nt improp erly assign ed the insura nce policy to himsel f,

such motion is also denied withou t prejud ice.

As for Duggan 's cross-m otion for summar y judgme nt

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dismi ssing the cause s of actio n again st her in her indiv idual

capac ity, she has faile d to meet her thres hold burde n on such

t to motio n, namel y to make a prima facie showi ng of entitl emen

judgm ent as a matte r of law (Alva rez v Prosp ect Hosp. , 68 NY2d

320, supra ) and thus her motio n is also denie d. Howe ver, for

the reaso ns state d above , Dugg an's cross -moti on to compe l t respo nses to her disco very reque sts is grant ed to the exten

g that the partn ershi p is direc ted to respo nd to all outst andin

of disco very deman ds as thoug h they had been made on the date

servic e of the notic e of entry of this decis ion.

We turn next to Dugga n's appli catio n (in her fiduc iary on capac ity) conce rning the proce eds of deced ent's IRA and pensi

plan. As noted above , Dugga n's unsuc cessf ul attem pt to comme nce

a turno ver proce eding by motio n was speci fical ly addre ssed by 14, the court in its prior decis ion (Matt er of Kelly , NYLJ, Mar.

2002, at 21, col 3, supra ). Neve rthele ss, she not only makes

repea ted refere nces to the "exis ting SCPA 2103 Turno ver it. Proce eding ," but also seeks summa ry judgm ent with respe ct to

The only claim s conce rning the IRA and pensi on plan that

are prope rly befor e the court are raise d in Dugga n's

count erclai m and are not even menti oned in her motio n. such

count erclai m, howev er, is not the prope r subje ct of a summa ry

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re for num ero us rea son s, inc lud ing jud gm ent mo tion at thi s jun ctu

siv e ple adi ng has bee n fil ed by tha t it app ear s tha t no res pon

par tne rsh ip (se e CPL R 321 2) and tha t the fid uci ari es of the the

joi ned as pa rti es. It is als o IRA and pen sio n pla n wer e nev er

wer e not def ici ent as obs erv ed tha t, eve n if the mo tion

sen ted by Dug gan fai ls to dis cus sed abo ve, the evi den ce pre

tha t the est ate is en titl ed to sup por t a sum mar y det erm ina tio n den ied . the fun ds at iss ue. For the se rea son s, the mo tion is

tion for dis qu ali fic ati on of Fin ally , we tur n to Du gga n's mo

LLP) tha t rep res ent s the the law firm (Be erm an & Deu tsch ,

par tne rsh ip in thi s act ion . The bas is for the mo tion is

has a con flic t of two fold . Fir st, Dug gan ass ert s tha t the firm

ent ati on of the par tne rsh ip int ere st res ult ing from its rep res pre dec ess or firm pro vid ed to and the est ate pla nni ng adv ice its e inc lud ed adv ice abo ut the dec ede nt, whi ch is all ege d to hav

at iss ue. Sec ond , she cla ims tra nsf er of the ins ura nce pol icy bec aus e one or mor e atto rne ys at dis qua lifi cat ion is app rop ria te e tes tim ony at tri al. the firm wil l be cal led upo n to giv I t 'is und'isp ute d tha t Ste phe n H. Deu tsch , a cur ren t mem ber

vic es to the par tne rsh ip of the law firm , pro vid ed leg al ser tne r. It is als o und isp ute d wh ile dec ede nt was the gen era l par adv ice to dec ede nt aro und the tha t he pro vid ed est ate pla nni ng

13 [* 13]

lf. time that deced ent assig ned owne rship of the polic y to himse

ent In this conn ectio n, the recor d inclu des a lette r to deced

tion from Mr. Deuts ch, dated July 12, 1999, confi rming the reten

of his prior firm to offer "esta te plann ing and other

recom mend ations ." Such lette r makes exten sive recom menda tions

. conce rning the dispo sition of deced ent's asset s upon his death

of signi fican ce here is the discu ssion of a $500, 000 life

ent insur ance polic y, which the attorn ey recom mende d that deced

with place in an insur ance trust for the life bene fit of Dugga n

remai nder to his child ren. Such polic y would appea r to be the

insura nce polic y at issue . Howev er, it is obser ved that the

y lette r makes no menti on of deced ent's assign ment of the polic

to himse lf appro ximat ely one month earli er.

Dugga n claim s that the lette r estab lishe s that the law firm

(comp rised of three attorn eys, two of whom were memb ers of Mr.

Deuts ch's prior firm) has "repr esent ed parti es and/o r given

confl icting advic e on adver se sides " of the centr al issue here,

namel y the trans fer of the insura nce polic y. Moreo ver, she

er asser ts, even if such were not the case, Mr. Deuts ch and anoth

attorn ey at the firm, Carol Sangi nario , who alleg edly has d inform ation pertin ent to the proce eding , likel y will be calle of as witne sses at trial under circum stance s where the inter ests

14 [* 14]

of thei r thei r curr ent clie nt will be clea rly adve rse to thos e

form er clie nt. it The part ners hip, for its part , does not offe r an affi dav with pers onal from Mr. Deu tsch or anyo ne else from the firm

repr esen tatio n of know ledg e of the circ ums tanc es of the firm 's this dece dent . Inde ed, the part ners hip' s only subm issio n on

edes that the issu e is a mem orand um of law in whic h it conc

conc luso ry fash ion atto rney repr esen ted dece dent , but claim s in ially rela ted to that the esta te plan ning advi ce was not subs tant itse lf, the curr ent disp ute and thus is not, in and of

suff icie nt to requ ire disq uali fica tion . s with in The dete rmin ation of a moti on to disq uali fy rest onwi de Asso c., the soun d disc retio n of the cour t (see e.g. Nati , 303 AD2d Inc. v Targ ee Stre et Inte rnal Med icine Grou p, P.C. t must be 728) . In exer cisin g such disc retio n, howe ver, the cour the coun sel of mind ful that a part y's righ t to be repr esen ted by rest whic h his or her choi ce is a valu able subs tanti ve inte

shou ld not be hind ered abse nt a clea r show ing that

disq uali fica tion is warr ante d ( s e e ~ s & s Hote l Vent ures Horn v Mun icipa l Ltd. Part ners hip v 777 S.H. Corp ., 69 NY2d 437;

Info . Svcs , Inc. , 282 AD2d 712} . The mova nt thus bear s the

burd en on such moti on (S & S Hote l Vent ures Ltd. , 69 NY2d 437,

15 [* 15]

( it is als o rec og niz ed supra) Ho we ve r, wi th in th is fra me wo rk, the ha s an ob lig ati on to pr ot ec t the in te gr ity of th at th e co ur t co nf lic ts by av oid ing lit ig at io n ta in te d by un wa iva ble pr oc es s n to Th us, if the rec or d on a mo tio of in te re st (se e id .). ue s of fa ct as sq ua lif y is su ffi ci en t to ra ise su bs tan tia l iss di uir ing wh eth er th er e is a co nf lic t or im pr op rie ty req to to de cid ing the sq ua lif ica tio n, a he ari ng sh ou ld be he ld pr io r di v Gi lbe rt. tio n (se e e.g . Ma rcu s Bo rg Ro sen be rg & Dia mo nd mo se L. L. P. , 280 AD 2d 26 1; Li gh tni ng Pa rk. Inc . v Wi Se ga ll & Yo ung AD2d 52 ). Le rm an & Ka tz, P.C ., 197 see ks of Du gg an 's mo tio n wh ich Wi th res pe ct to th at pa rt at the fic ati on on the gro un d tha t on e or mo re att or ne ys dis qu ali

lle d up on to giv e tes tim on y at tri al (se e Co de of fir m wi ll be ca )), suc h on al Re sp on sib ili ty DR 5-1 02 [22 NYCRR § 12 00 .21 Pr ofe ssi eju dic e. A pa rty see kin g mo tio n is de nie d wi tho ut pr thi ng s, ali fic ati on on th is gro un d mu st sho w, am ong oth er dis qu Ve ntu res "n ece ssa ry" (S & S Ho tel tha t the tes tim on y wi ll be a wh ich req uir es mo re tha n Ltd ., 69 NY2d 437 , su pra ), olv em en t nst rat ion tha t the att or ne y ha s kn ow led ge of , or inv de mo . Th e co urt mu st exa mi ne "su ch in, the tra ns ac tio n at 1.·s sue e of the ma tte rs, we igh t of the fac tor s as the sig nif ica nc of oth er ev1'd (id . at 44 6). tes tim on y, and av ail ab ili ty . en ce"

16 [* 16]

Her e Du gga n's a sse r t'ion tha t she pla ns to dep ose and the n cal l '

the atto rne ys at Bee rma n & as a tri al wit nes s one or mor e of

tion or rec ord s per tin ent to Deu tsch bec aus e the y hav e ~in for ma

y ins uff ici ent to war ran t the tri al of thi s act ion " is pla inl

dis qua lifi cat ion at thi s tim e.

mo tion see kin g We thu s tur n to tha t por tio n of the

ged con flic t of int ere st dis qua lifi cat ion bas ed upo n an alle

rep res ent atio n of dec ede nt ari sin g out of Mr. De uts ch' s pri or ilit y 5-1 08 [22 NYCRR § (Se e Cod e of Pro fes sio nal Res pon sib ue not rai sed by 120 0.2 7]) . Ini tia lly , how eve r, a thr esh old iss

ely Dug gan 's sta ndi ng to the par tie s sho uld be add res sed , nam ugh t the mo tion in her see k suc h rel ief , sin ce she has bro con flic t ari ses out of Mr. ind ivid ual cap aci ty and the pur por ted rat her tha n Dug gan her sel f. Deu tsch 's rep res ent atio n of dec ede nt the pro pos itio n tha t a The re is con sid era ble aut hor ity for qua lifi cat ion of cou nse l par ty has no sta ndi ng to see k the dis (see e.g . Dev elop Do n't wit h whom he has had no rel atio nsh ip AD3d 144 ; Row ley v Des troy v Em pire Sta te Dev . Cor p., 31 ). How eve r, Dug gan , as Wa terf ron t Air way s, Inc ., 113 AD2d 926 arg uab ly sha res wit h ben efic iary of the ins ura nce pol icy , con nec tion wit h suc h pol icy dec ede nt an ide nti ty of int ere st in sta ke in suc h mo tion ( ~ and the ref ore may hav e a cog niz abl e

17 [* 17]

Mis c 2d 429 ). And , in any Boo th v Co ntin ent al Ins . co. , 167

g to mak e suc h a mo tion , eve nt, eve n if Dug gan has no stan din

lify cou nse l sua spo nte if cou rts hav e the aut hor ity to dis qua

in the pro cee din g wou ld be cou nse l's con tinu ing par tici pat ion

riet y tha t is pro fou nd eno ugh tain ted wit h a con flic t or imp rop

DeJ esu s, 106 AD2 d 284 ; to be unw aiv abl e (see e.g . Rowe v

ties , Inc ., 105 AD2d 829 ; Flu shin g Sav ing s Ban k v FSB Pro per c 2d 429 , sup ra) . Boo th v Con tine nta l Ins . Co. , 167 Mis nat ure of Mr. Her e, the alle gat ion s con cer nin g the

ede nt and its rel atio nsh ip Deu tsch 's pri or rep res ent atio n of dec ien tly ser iou s to war ran t a to the cur ren t liti gat ion are suf fic rer, NYL J, Dec . 12, 200 6, sua spo nte inq uir y (see Ma tter of Mau

at 32, col 4). Tha t Dug gan did not bri ng the mo tion

fir st to neg otia te a imm edia tely and , ins tea d, atte mp ted

t. Alt hou gh the let ter upo n sett lem ent doe s not neg ate thi s fac est abl ish tha t Mr. whi ch Dug gan bas es her mot ion doe s not ng adv ice , cou nse led Deu tsch , as par t of his est ate pla nni ersh ip of the ins ura nce dec ede nt reg ard ing the tra nsf er of own , it doe s rai se ma teri al pol icy from the par tne rsh ip to him self · rep res ent atio n as it of his que stio ns abo ut the nat ure and sco pe t req uir e fur the r rela tes to the cur ren t liti gat ion tha

exa min atio n. · um stan ces and the cou rt's Gi'v en th ese circ

18 [* 18]

ob l'iga t'ion to ens ure the int egr ity of its pro cee din gs, an (se e Lig htn ing Par k, Inc . v evi den tia ry hea rin g is wa rra nte d d 52, sup ra) . The pa rti es are Wis e Ler man & Kat z, P.C ., 197 AD2 -he ari ng con fer enc e on Feb rua ry thu s dir ect ed to app ear for a pre of thi s cou rt. 20, 200 7, at 2:0 0 p.m . in Room 401 er of the cou rt. Thi s dec isio n con stit ute s the ord

1~~ I I S U R R O G A T E

Dat ed: Jan uar y/1 , 200 7

19 [* 19]