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By John G. Farinacci, Esq.
In New York Surrogate’s Court litigation, there are many unique discovery devices that would be foreign to an attorney that litigates primarily in State Supreme Court. An SCPA 2103 discovery proceeding is one example. However, the majority of discovery in Surrogate’s Court is governed by the CPLR, either by specific reference to it such as exists in SCPA 1404 and 2211, or by the general applicability of the CPLR in Surrogate’s Court as provided by SCPA 102.
The rules concerning discovery from non-parties in Surrogate’s Court is, by and large, governed by the CPLR and the case law that has developed in a wide range of litigated matters applies equally in Surrogate’s Court as it does in Supreme Court. Thus, the split between the various Appellate Division departments regarding the standards by which discovery can be obtained by a non-party witnesses, until recently, was every bit as much a Surrogate’s practitioner’s concern as it was a Supreme Court litigator’s.
CPLR 3101(a)(4) allows for disclosure of “all matters material and necessary in the prosecution or defense of an action…by [a non-party] upon notice stating the circumstances or reasons such disclosure is sought.” The Second and Third Departments have held that in addition to having to show that the subpoenaed information sought from non-parties was “material and necessary” (i.e., relevant), it must also be shown that the information sought could not be obtained from other sources. See Kooper v. Kooper, 74 A.D.3d 6, 901 N.Y.S.2d 312 (2d Dep’t 2010). [enhanced opinion available to lexis.com subscribers] On the other hand, the First and Third Departments did not have that added requirement.
In effect, there was no real difference in the standard to obtain information from a party as there was to obtain information from non-party in the First and Fourth Departments. In contrast, a heightened standard with respect to non-parties existed in the Second and Third Departments.
In its April 3, 2014 decision, Matter of Kapon v. Koch, 2014 N.Y. LEXIS 662 (No. 63) (Apr. 3, 2014) [enhanced opinion], the Court of Appeals ruled that the First and Fourth Departments have it right. The Court held that CPLR 3101(a)(4) does not require that that the subpoenaing party shows that it cannot obtain the information from other sources. All that is required is a showing that the information sought is “relevant to the prosecution or defense of the action.” So long as that burden is met, the subpoenaed non-party must comply.
This ruling finally brings the Appellate Division departments into line with each other and in line with modern notions of liberality in the scope of disclosure, both from parties and non-parties alike.
Mr. Farinacci co-chairs and is a partner in Ruskin Moscou Faltischek's Trusts and Estates Department. He heavily concentrates his practice in trust and estate litigation, having successfully handled numerous contested cases in the New York State Surrogate's Court, Supreme Court, Supreme Court Appellate Division, Court of Appeals and Federal District Court. Mr. Farinacci also represents clients in estate planning, estate administration and guardianship matters. Prior to joining RMF, Mr. Farinacci was a partner at a Long Island law firm, where he specialized in trust and estate matters. While in law school, Mr. Farinacci interned for the Nassau Surrogate's Court under Judge C. Raymond Radigan.
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 Prior to Kooper v. Kooper, the Second Department also required a showing of “special circumstances”. That additional requirement was specifically overruled by Kooper.