ESTATE OF JACK SELVAGGIO, a/k/a JACK F. SELVAGGIO, SR. a/k/a JACK F. SELVAGGIO, Deceased. (2375/B/11) — In this contested probate proceeding, objectant Christina A. Selvaggio ("Christina") moves for unspecified penalties pursuant to CPLR §3126 due to petitioners' alleged refusal to comply with this court's order of April 16, 2013.

Christina's earlier motion to compel the petitioners to respond to her December 20, 2012 demand sought an extension of the generally applicable three-two rule limiting discovery in contested probate matters (Matter of Griffith, 48 Misc2d 1048; 22 NYCRR 207.27). For the reasons set forth in its April 16, 2013 decision and order, the court found that an extension of the rule was warranted relative to some of the objectant's demands. Accordingly, the court directed the petitioners to serve an additional response to those demands, as follows:

Demand 2: Copies of Mod Veteran's Fuel Oil Co.'s 2010 and 2011 income tax returns.

Demand 7: Copies of Mod Veteran's Fuel Oil Co.'s accounting records and books from 2006 through 2011.

Demand 14: Copies of Mod Veteran's Fuel Oil Co.'s banking records from 2006 through 2011.

Demand 13: Copies of the decedent's banking records from May 19, 2006 to November 16, 2007.

Regarding Demand 2, Christina admits that she received copies of Mod-Veterans Fuel Oil Corp.'s 2010 and 2011 income tax returns, but now complains that she is also entitled to the years 2006-2009 inclusive, as she has a "legal right to go back five years prior to the death of the decedent."

Regarding Demand 7, Christina admits that she received a "trial balance report" for the period of time 2006 through 2011 for Mod-Veterans Fuel Corp., but complains that this does not constitute the "Official Accounting Records."

Regarding Demand 14, Christina complains that she has not received any banking records for Mod-Veterans Fuel Oil Corp.

Regarding Demand 13, Christina complains that she has not received any of the decedent's banking records from May 19, 2006 to November 16, 2007, and she further seeks an order directing the petitioners to disclose the decedent's banking records for the period of May 19, 2006 through May 19, 2011 on the same grounds stated above; that is, that she has a "legal right to go back five years prior to the death of the decedent."

Additionally, Christina seeks an order directing the petitioners to respond to her demands 1-5 and demand 12, covering the five year period of time preceding the decedent's death.

In opposition to the motion, petitioners contend that they have complied with the court's order of April 16, 2013. Petitioners allege that they have turned over to the movant substantial records, and that they have filed copies of these with the court. A search of the court record reflects that the petitioners have filed over 500 pages of what the petitioner alleges are documents consisting of Mod-Veterans Fuel Oil Corp.'s 2010 and 2011 income tax returns; Mod-Veterans Fuel Oil Corp.'s accounting records and books from 2006 through 2011; and Mod-Veteran's Fuel Oil Corp.'s banking records from 2006 through 2011.

With regard to movant's contention that petitioners' response to demand 7 is not an "official" accounting record for the period of time 2006 through 2011 for Mod-Veterans Fuel Corp., she has failed to establish why the records produced are not responsive to her demand, or what other records exist that are relevant and material.

Consequently, insofar as demands 2, 7 and 14 are concerned, since it appears petitioners have supplied all responses due, the branches of the motion seeking penalties for their non-compliance with the court's order of April 16, 2013 is denied.

With regard to movant's contention that she has not received the decedent's banking records for the period May 19, 2006 to November 16, 2007, the court finds petitioners' counsel's statement in response to the motion, that "petitioners are not in possession of such banking records" does not satisfy the order of the court which directed petitioners to serve a response regarding these records. The objectant is entitled to affidavits by the petitioners themselves or any other person having knowledge of where the documents may be located (Fugazy v. Time, Inc., 24 AD2d 443). As CPLR §3120 allows the discovery and inspection of documents "in the possession, custody or control" of the party served, in the event the petitioners do not have the records, an affidavit regarding the unavailability of any of the banking records should include whether a search was conducted in every location where the records are likely to be found (Henderson-Jones v. City of New York, 87 AD3d 498).

Accordingly, the objectant's motion is granted to the extent that the petitioner is directed to serve a proper response to movant's demand for copies of the decedent's banking records for the time period beginning May 19, 2006 and ending November 16, 2007, within thirty days of the date of this decision and order.

As an aside, the court notes that although relief was not properly sought by the movant regarding the decedent's personal banking records for the period November 16, 2007 through May 19, 2011, Christina avers in her affidavit in support that she has not received such records. Since petitioners' counsel has stated that petitioners have in fact provided the objectant with the same, in an effort to preclude further motion practice on this issue, the petitioners are also directed provide proof of such service with the court within five days of the date of this decision and order, or re-serve their responses to objectant's demand for the decedent's personal banking records for the period November 16, 2007 through May 19, 2011 within thirty days of the date of this decision and order.

Finally, it also is apparent that the movant seeks an order directing the petitioners to respond to her demands 1-5 and demand 12; enlarging the discovery period for these demands to include the five years prior to the decedent's death; and enlarging the discovery period for demands 2 and 13 to include the five years prior to the decedent's death. All of this relief was sought in movant's prior motion and determined by the court's decision and order dated April 16, 2013. To the extent that movant is seeking to reargue that decision, even though such relief is not properly sought, such relief is denied as it is untimely [CPLR 2221(d)(1) and (3)] and, in any event, movant has not established that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (see, Foley v. Roche, 68 AD2d 558).

This is the decision and order of the court.

October 1, 2013