### Matter of Nicholson 2024 NY Slip Op 31771(U) May 20, 2024 Surrogate's Court, New York County Docket Number: File No. 2013-1194/C 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.SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 

### ------------------------------------------------------------------------x In the Matter ofthe Accounting ofJames A. Nicholson and Justin M. Nicholson, as Co-Executors ofthe Last Will and Testament of RONALD A. NICHOLSON, Deceased. 

### ------------------------------------------------------------------------x MELLA, S.: NewYorkCountySurrogate'sCourt DATA ENTRYDEPT.



### M,W 

### 202024

DECISION and ORDER
File No.: 2013-1194/C

The following papers were considered in deciding this discovery-related motion: Papers Considered: Objectant's Notice ofMotion to Compel Answers of Co-ExecutorJames A. Nicholson, dated July 31, 2023; Affirmation ofJason E. Zakai, Esq., dated July 31, 2023 with Exhibits Memorandum ofLawin Support ofMotion to Compel, dated July 31, 2023 Affidavit ofJames A. Nicholson in Opposition, dated August 16, 2023, with Exhibits Affirmation ofAnne C. Bederka, Esq., in Opposition, dated August 18, 2023, with Exhibits Affirmation ofQuincy Cotton, Esq., in Opposition, dated August 18, 2023, with Exhibits Memorandum ofLawin Opposition to Motion, dated August 18, 2023 Reply Memorandum ofLawin Further Support ofMotion, dated September 6, 2023 Numbered: 1, 2

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At the call ofthe calendar onNovember 14, 2023, the court denied the motion of PatriciaNicholson (Patricia) to compel Co-Executor James Nicholson (James) to answer four out offive categories ofquestions that he had been directed not to answer by counsel at his SCPA 2211 examination in this Executors' accounting in the estate ofRonald Nicholson. Regarding a



### [* 1]fifth category ofquestions related to James's sale ofhis personal interest in certaintax shelters, the court deferred its ruling based onthe parties' representations during oral argument that they
were close to resolving that issue. Background Decedentdied onFebruary 26, 2013, survived by his wife, Patricia, and three children, James, Leslie and Justin. As pertinenthere, decedent provided in his will for his residuary estate to be held in a trust for the income benefit ofPatricia with remainder upon her death to his children (Marital Trust). He nominated James and Justin as Co-Executors and Co-Trustees of the Marital Trust. Letters Testamentary and ofTrusteeship issued to them on March 27, 2013. Three years after decedent's death, James and Justin commenced the instant accounting to which Patriciahas objected. She alleges, among otherthings, that certain actions by James and Justin
as Executors, and later as Trustees ofthe Marital Trust, improperly impaired orlimited her interests in the Marital Trust. 1 Patricia examined James over two days, pursuantto SCPA 2211, about his administration ofdecedent's assets. For context, it is importantto note that, for years, James assisted in the management ofdecedent's significant real estate holdings. James also had his own real estate investments apart from those in which his father had an interest. When James's counsel instructed him not to answer certain lines ofquestions, Patriciamade the instant motion to compel him to answer questions regarding the following: 1) James's role in the 2011 refinancing ofestate entity, Gaslight Village Associates LP, and his knowledge ofhowthose refinancing proceeds were to be used, 2) the compensation James received for personal business activities he

I The Marital Trust is the subject ofa separate contested accounting. 2



### [* 2]conducted at estate entity Bay Management Corp., 3)whetherJames'srelationship withreal estate investorBurton Kassell affected the estate's ability to purchase additional partnership units in Greenhouse II Associates LLP, an entity inwhichthe estate owns an interest, and 4) James's relationship with Ale Maley, LLC, which was substituted as the General Partner for BackBay Associates, LP, an entity indirectly ownedby the estate. There is no dispute that all ofthe areas into which Patricia seeks to inquire involve matters priorto decedent's death (andthus are outside the accounting period), or concernJames's personal business activities. Discussion The statutory mandate that all matters "material and necessary" whichbear onthe controversy be disclosed (CPLR 3101) is construed liberally, but a party is not entitled to "unlimited, uncontrolled, unfettered disclosure" (State Farm Mut. Auto. Ins. Co. vRLCMed., P.C., 150 AD3d 1034, 1035 [2d Dept 2017} [internal quotations marks and citations omitted]; Matter of Eckert, 60 Misc 3d 1007 [Sur Ct, Queens County 2018] [courthas broad powerto regulate discovery]). Theparty seeking discovery must demonstrate that the material sought is relevant or couldproperly lead to relevant evidence (see State Farm Mut., 150 AD3d at 1035;
see also Brennan v Demydyuk, 196 AD3d 1113, 1114 [4th Dept 202l][noting that "thepleadings determine the scope ofdiscovery in a particular action"]). Withinthis framework, SCP A 2211 [2] providesthat, in an accounting, a "fiduciary may be examined
... as to any matterrelating to his
orher administration ofthe estate" (see Matter of Jane D. RitterRev Trust, 147 AD3d 757, 758 [2d Dept 2017]). The court found that Patriciafailed to meet herburdento establish thatthe subject matters about which she soughtto question James were "material and necessary" to the issues
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### [* 3]raised in the accounting. Specifically, she did not demonstrate that discovery concerning matters outside ofthe accounting period (February 26, 2013 through July 31, 2015) would be relevant to James's administration ofthe estate, which is the subject ofthis instant accounting 

### (see Matter of Rich, 117 AD3d 1103 [3d Dept 2014] [ court refused to allow pre-death discovery, limiting discovery to accounting period]; 

### see also Matter ofVoice, 35 Misc 2d 225 [Sur Ct, Nassau County 1962] [pre-death business activities not properly within accounting to be compelled]). Nordid Patricia establish a basis to question James about his personal finances and business dealings 

### (see Matter of Model/, NYLJ, Oct 11, 2013, at 44 [Sur Ct, NY County] [court refused to allow SCPA 2211 examination into matters entirely unrelated to account and conduct as trustee]). Contrary to Patricia's contention, the cases upon which she relied were plainly distinguishable and did not stand for the proposition she claimed, namely thatthe management of decedent's assets priorto the accounting period and information regarding James's personal financial information and business dealings were discoverable in this proceeding. In addition, although Patricia soughtto compel James to answer questions concerning the financial interests ofthird-parties such as Burton Kassell and entities that neither James nor the estate controls, manages or has an ownership interest in, she did not establish howinquiries into these matters involved James's activities as co-Executor within the accounting period. Under these circumstances, the comtfound that compelling James's answers would not be "material and necessary" to the objections and, instead, would lead discovery far afield from the issues raised in the Executors' account, resulting in "delay and prolixity," which is to be avoided 

### (Allen
v. Crowell-Collier Publishing Co., 21 NY2d 403, 406 [1968]; 

### see also Matter of Hoppenstein, 187 AD3d 469 [1st Dept 2020] [affirming grant ofprotective order where discovery demands
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### [* 4]went beyond the issues raised by accounting objections]). For these reasons, the court, in its discretion and in consideration ofthe record before it and the other arguments made by the parties, denied Patricia's motionto compel as to the four categories ofquestions set forth above (see generallyAndonv 302-304Mott St. Assoc., 94 NY2d 740, 747 [2000] [courts exercise their discretion to determine the scope ofdiscovery onthe facts and circumstances ofeach case]). As to the fifth category, in view ofthe fact that, in the time since the oral argument, no party has notified the court that the parties' efforts to resolve the motion as to that issue had failed, that part ofthe motion seeking to question James as to the sale ofhis personal interest in certaintax shelters is now denied, without prejudice. This decision, together with the transcript ofthe November 14, 2023 proceedings, constitutes the order ofthe court.

Dated: May 20, 2024 

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