Three probate proceedings in the estate of the deceased woman moves for an order for a partial stay or a protective order directing that the surviving son’s obligations to respond to all discovery demands that have been served on him temporarily be stayed until related criminal charges pending against him are resolved. The Library and the Museum, two charitable beneficiaries under the wills of the deceased woman oppose the motion. The District Attorney moves for an order granting him the right to intervene in the proceedings and upon intervention, granting a stay of all proceedings pending the resolution of the criminal charges pending against the surviving son. The motion is opposed by the surviving son, the Library and the Museum. The Attorney General of the State moves for an order granting a stay of all proceedings or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference.
A woman was survived by her only child. Three sets of paper writing claiming to be wills of the deceased woman were filed in court. The first paper writing is a will dated January 30, 2002, along with a first, second and third supplement. The second paper writing is a will dated February 2, 2001 with a sole supplement. The third paper is a will dated January 8, 1997, also with a sole supplement.
A New York Probate Lawyer said the trust bank filed a petition for the validation of the 1997 will. The surviving child of the deceased filed a petition for the validation of the 2002 will and the first two supplements only. He also filed a petition for the validation of the 1997 will.
By order, Westchester Surrogate’s Court established a schedule for the taking of document discovery. The order included dates for the exchange of documents and the depositions of witnesses.
On November 27, 2007, an arraignment was unsealed against the surviving child and the drafter of the third supplement to the 2002 will. NYC Probate Lawyers said the arraignment alleges acts of various crimes which took place from about 2001 to 2007. It charges the surviving son with crimes concerning the offering of the second supplement for validation, and the attorney’s drafting of the third supplement. At the arraignment, the surviving son’s plead was not guilty.
By notice of motion, the surviving son moved for a partial stay and a protective order to suspend his obligations to respond to the discovery demands until such time as the criminal proceeding was terminated. In opposition, the Library and the Museum argue that the surviving son is not entitled to a stay or a protective order. The Library and the Museum claim that they are concerned about the delay and possible prejudice due to the surviving son’s advancing age. The Library and the Museum insist that the surviving son should be required to serve his documents subject to a privilege log and he could move for a protective order.
By notice of motion the District Attorney moved to intervene and upon intervention, to stay all proceedings pending the resolution of the criminal charges pending against the surviving son and the drafter of the supplement. In support of his motion, the District Attorney argues that of the 18 counts contained in the arraignment, seven relate directly to wills before the court in the said proceedings. He also argues that the other counts are likely to relate to the issues of the proceeding, and many, if not all of the parties to be deposed will be called as witnesses in the criminal proceedings.
The Library and the Museum do not object to the intervention but argue that a blanket stay of discovery is not necessary. They also object that document production should continue in order to assess the value of any settlement proposals they may receive and that a stay of no more than six months should be granted to allow the criminal proceeding to progress.
By notice of motion, the Attorney General moved for a stay of all trials or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference after the issuance of the stay. Bronx Probate Lawyers said the Attorney General argues that the District Attorney’s application is reasonable because the surviving son would be unfairly privileged in his criminal defense if allowed civil discovery. He also argues that the parties to the civil proceedings would not be unduly discriminated by a stay of a limited duration and that they might benefit a resolution in the criminal proceeding.
In his reply, the surviving son motions now consents to the District Attorney’s request for a stay provided that the parties currently in default of production of the documents pursuant to the court’s discovery order be ordered to make production prior to the stay.
The District Attorney moves to intervene. The court finds no basis for intervention as of right. However, the court exercises its discretion to grant intervention based on the common questions of fact and law between the criminal and civil proceedings.
A law provides that a court may grant a stay in a proper case. The pendency of a criminal proceeding does not automatically stay a related civil proceeding. The issuance of a stay in the civil proceeding is directed to the sound discretion of the trial court. In deciding whether to issue the stay, the court may consider the risk of inconsistent adjudications, application of proof and potential waste of judicial resources. The court may also consider whether a party will invoke the Fifth Amendment privilege against self-incrimination in the civil proceeding.
Based on the above, the court grants a stay provided that the obligations of the parties under the October 17, 2007 order are stayed except that the parties shall complete document discovery as set forth in paragraph one of that order by January 28, 2008. Also included in the provision is that until any non-party subpoena to appear in court served have not been returned prior to the date of the decision and order, the production there under is stayed, and the stay is effective until further order of the court. The parties, including the District Attorney, shall appear which the court will entertain oral argument on whether or to what extent the stay should be lifted.
The parties have expressed an interest to pursue the settlement negotiations during the postponement of the criminal prosecution and the document production among the parties will facilitate the process. The court rejects the argument of the District Attorney that production of the documents will necessarily benefit the surviving son in the criminal proceeding. At a conference with the parties, the court was advised that most of the documents demanded among the parties had either been produced or had been made available for inspection. In addition, by order of the Supreme Court, New York County, the record of the guardianship proceedings of the deceased was unsealed, and those documents are now available to the parties.
The surviving son’s motion for a protective order is denied on record. The court rejects the surviving son’s argument that he will be unfairly prejudiced if he is made to produce his documents because of the negative inference of asserting the Fifth Amendment privilege against self-incrimination. He will produce his documents by the date set by court. Any claims of privilege shall be the subject of a motion for a protective order which must be made returnable on or before February 13, 2008. The documents which the court determines are subject to the Fifth Amendment privilege against self-incrimination will not be produced until further order of the court. Given the issuance of the stay, no inference will be drawn from whatever privilege he will seek to assert. The motions are denied except as otherwise provided.
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