Opinion
338987.
December 16, 2009.
The present proceeding is brought by Evan DeFrancesco, ("petitioner") pursuant to the Surrogate's Court Procedure Act (SCPA) § 1407 for the probate of a lost will purportedly executed by her brother, Peter T. Demetriou, ("decedent"). Submitted for decision is the motion, by order to show cause, of objectants for a protective order as to discovery sought from a non-party, Maryanne Buckley. For the reasons that follow, the motion is denied.
The decedent died on September 11, 2005. A will executed on January 8, 2003, ("2003 Will") which provided for his wife, Irene Demetriou ("Irene"), and his three children was admitted to probate by this court on September 21, 2005. The petitioner in this proceeding seeks to admit a later instrument to probate as a lost will and revoke the earlier will's probate decree. The allegations contained in the petition may be summarized as follows. Before he died, in 2005, decedent sought the services of his long-time attorney Peter Cotelidis ("Cotelidis") to change the 2003 Will in light of changing circumstances with his wife Irene, specifically her commencement of divorce proceedings against the decedent (Cotelidis aff 4). As a result of his discussions with Cotelidis, the decedent had a new will prepared, the final version of which was completed and then executed by decedent on August 31, 2005 (Cotelidis aff 6). The terms of the August 31, 2005 will ("2005 Will") differ significantly from the terms of the 2003 Will. The 2005 Will reduced Irene's share to her elective share, it left nothing to the decedent's two children Theodore and Chrysanthi and the terms of an option to purchase the decedent's businesses granted to decedent's son Michael which existed under the 2003 Will as well, were much less favorable to him under the 2005 Will (Cotelidis aff 6). Also, the 2003 Will provides for a single executor, Themis Vassiliou, while the 2005 Will provides for three executors, Vassiliou, Cotelidis, and petitioner (Cotelidis aff 7). The petitioner in this lost will proceeding is the decedent's sister. Relevant to this motion is the nature of the relationship the decedent had with a Maryanne Buckley.
The decedent had a longstanding personal and professional relationship with Maryanne Buckley ("Buckley") who worked with him since 1979 in decedent's insurance business. In addition, the decedent allegedly resided with Buckley at the time of his death. After the decedent's death, Buckley was involved in litigation with several of the Demetriou companies which resulted in a stipulation and "Confidentiality Order" issued on February 7, 2007. The stipulation requires that documents and/or information that are designated "confidential" shall not be disseminated in any action or proceeding involving the plaintiffs in the aforementioned action, as well as the Estate of Peter Demetriou and/or the executor(s) of Peter Demetriou (Shockley aff 20-21). It further provides that "[t]o the extent that the defendant herein [Maryanne Buckley] is named as a party in any current or future action or proceeding she shall have the right to use said documents in that action or proceeding."
The Davis Agency, Inc., New Windsor Insurance Agency, Inc., Peter Demetriou Sons, Inc. and The Demetriou Group of New Jersey, Inc. v. Maryanne Buckley, Index No.: 17353/2005 in Supreme Court, Nassau County.
Furthermore, on or about August 16, 2007, Buckley entered into several Settlement Agreements with the following parties: 1) The estate of Peter Demetriou and Vassiliou, as executor of the Estate; 2) Irene; and 3) The Davis Agency, Inc., New Windsor Insurance Agency, Inc., Peter Demetriou Sons, Inc., The Demetriou Group of New Jersey, Inc., The Demetriou Group of Manhattan, Inc. (the "Demetriou Companies") and Michael. These settlement agreements contain both confidentiality provisions, as well as the incorporation of the terms of the February 7, 2007 Confidentiality Order. The court notes that the Confidentiality Order was an "order" signed by a special referee in the Supreme Court. This fact will prove to be irrelevant to the reasoning of this decision.
The requirements to prove a lost will are set forth at SCPA § 1407 which provides that "[a] lost or destroyed will may be admitted to probate only if: (1) [i]t is established that the will has not been revoked, and (2) [e]xecution of the will is proved in the manner required for the probate of an existing will, and (3) [a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete." In addition, when a will cannot be found after death and the will was in the testator's possession at the time of death there is a strong presumption that the will was revoked by the testator ( Matter of Evans, 264 AD2d 482 [2d Dept 1999]). It is the burden of the proponent to prove non-revocation of the lost will. The proponent can rebut the presumption using "facts and circumstances which show that the will was fraudulently destroyed" during the testator's lifetime ( Matter of Philbrook, 185 AD2d 550 [3d Dept 1992] citing Collyer v Collyer, 110 NY 481, 486).
For discovery purposes, New York courts have liberally construed the scope of disclosure for material that is "material and necessary." More specifically, the New York Court of Appeals has stated that "material and necessary" must be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy . . ." ( Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 407 [holding that a "broad interpretation of the words `material and necessary' is proper"]). Although CPLR 3101[a] allows for "full disclosure of all matter material and necessary in the prosecution or defense of an action . . ." this provision is subject to a limitation, the test for which is one of "`usefulness' and `reason'" ( U.S. Ice Cream Corp., v. Carvel Corp., 190 AD2d 788 [2d Dept 1993] citing Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406). As long as the material sought meets this minimal limitation "pretrial discovery is to be encouraged" (Id.). CPLR 3101(a)(4) authorizes disclosure of material and necessary matter from non-party witnesses who do not otherwise fall within the scope of CPLR 3101(a)(3). Such disclosure may be had upon notice stating the circumstances or reasons disclosure is sought or required.
In the instant case, petitioner bears the heavy burden of demonstrating that decedent did not revoke his will prior to his death. Under SCPA § 1407 of the three requirements that petitioner must meet, the first requirement will be the most difficult to satisfy. The first requirement under SCPA § 1407 requires petitioner to prove that the will had not been revoked; petitioner seeks to meet her burden by demonstrating that the decedent's children, in connection with Vassiliou, were responsible for the destruction or disappearance of the original 2005 Will. In support of this position, petitioner has subpoenaed Buckley for a deposition and for production of corporate documents relating to the Demetriou corporations. Petitioner seeks the production of documents relating to the Net Annual Commissions and Unpaid Principal Balance to demonstrate that the probate of the 2003 Will was more favorable to decedent's children, thereby showing that the actions of decedent's children and Vassiliou on the night of decedent's death were suspicious in nature, and therefore, explaining the disappearance of the original 2005 Will.
Through the Buckley subpoena, petitioner seeks the production of financial records of the Demetriou corporations, more specifically, information relating to the Net Annual Commissions of the corporations and of the Unpaid Principal Balance of the corporations. Additionally, petitioner seeks to depose Buckley over the objection of Themis Vassiliou, Irene Demetriou, Michael Demetriou and Chrysanthi Demetriou ("objectants"). The objectants seek a protective order from this court preventing the production of documents which, they argue, are confidential and immaterial to the current proceeding before this court. The Confidentiality Order that the objectants base their argument on provides that "`Confidential Material' is defined as material designated as `Confidential Material' based upon a good faith assertion that disclosure of such material might adversely affect a Producer's competitive business revenues, profitability or operations" (Shockley aff. 22). The subpoenaed information requested is limited in its nature; petitioner seeks only the Net Annual Commissions information from calendar year 2004 and all documents concerning the Unpaid Principal Balance of the Corporations, not all financial information from each of the businesses. The subpoenaed information would not appear to disclose any information relating to how the Demetriou businesses operate, thereby obviating the concern that the companies will be adversely affected in terms of business revenues or profitability. To further quell any concern the objectants may have regarding disclosure of financial documentation of the Demetriou corporations, petitioner's counsel noted in his affirmation that petitioner would be willing to enter a Confidentiality Order for this case to prevent disclosure of this financial information to any of the competitors of the Demetriou corporations (Lankler aff 34).
The objectants seek to prevent disclosure of the settlement agreements on the grounds that the settlement agreements are confidential and to prevent disclosure of trade secrets of the Demetriou corporations. New York courts have no generally accepted definition of a trade secret, however, several courts have used the definition of trade secret set forth in the Restatement of Torts § 757, comment (b) ( Ashland Mgt. Inc. v Janien, 82 NY2d 395, 407). Under the Restatement definition a trade secret is "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it" (Id.). The objectants have the burden of establishing that the subpoenaed information consists of trade secrets ( Mann ex rel. Akst v Cooper Tire Co., 33 AD3d 24, [1st Dept 2006]["when trade secrets are sought by an adverse party in litigation, the burden of establishing that the information sought is a trade secret lies with the disclosure objectant"] [Id.]). The objectants have simply stated that the settlement agreements contain trade secrets but have not presented any information that, in fact, the agreements do contain trade secrets of the Demetriou corporations. Conclusory statements from the attorney for the party seeking protection from disclosure on grounds of trade secret are not generally sufficient to prevent disclosure ( see, NY State Businessmen's Group, Inc. v Dalton, 154 AD2d 801 [3rd Dept 1989] and this court's decision in Matter of Seviroli, 6 Misc3d 1039 (A), [Sur Ct, Nassau County 1995]).
The production of the financial records of the Demetriou corporations, as well as the production of any settlement agreements Buckley may have entered into with numerous other parties as a result of the prior 2005 action are "material and necessary" under the CPLR's broad interpretation for the disclosure of relevant material in a proceeding. In this action, petitioner seeks to show that there is a plausible explanation for why the original 2005 will has not been located and that reason is that certain of the decedent's issue have either hidden or destroyed the original 2005 Will (Lankler aff 26). Petitioner seeks to demonstrate how much of a benefit the decedent's son, Michael, enjoyed when he exercised his option to purchase the decedent's businesses under the 2003 Will as compared to the 2005 Will. It should be noted that one need look no further than the terms of the 2003 Will versus the 2005 Will in order to see that Michael would enjoy a significant benefit by exercising his option to purchase under the 2003 Will, however, the additional financial documentation sought by petitioner seems to be reasonably calculated in order to further support her explanation as to why the original 2005 Will could not be located.
CPLR 3101[a] and existing case law provide courts with broad discretion in determining the scope of discovery and thus requires the conclusion that petitioner be allowed to pursue the subpoenaed information to assist her in establishing the first requirement under SCPA § 1407, which is that the decedent did not revoke the 2005 Will. The subpoenaed information may assist petitioner in establishing the will was actually, fraudulently destroyed. Therefore, the motion for a protective order is denied. The deposition of Maryanne Buckley may go forward with the demanded documents. However, and based on the petitioner's offer, the court will require the petitioner to keep said documents confidential within the confines of this proceeding.
This constitutes the decision and order of the court.