The decision in Krigsman v Goldberg  2018 NY Slip Op 30104(U)  January 19, 2018  Supreme Court, New York County  Docket Number: 151271 /16  Judge: Manuel J. Mendez reads like a Dickens novel in which litigation goes on until no one has any money left to litigate over.  Widow litigates over the will until she dies, and all for naught. At the end the law firm has billed $ 100,000 with no result in sight.  Now the question of discovery looms, and the attorneys would like to have the case dismissed.  Judge Mendez describes the limits of discovery.

“The essence of plaintiff’s complaint is that the moving defendants committed legal malpractice when they failed to exercise Dora’s right of election to her husband Shlomo’s estate in accordance with the EPTL§5-1.1-A. That instead of exercising the right of election the moving defendants filed objections against the Estate of Shlomo in a proceeding in Surrogate’s court to probate Shlomo’s Will, and commenced a separate action in New York State Supreme Court Kings County (Index 21521- 2003) on Dora’s behalf, against Shlomo’s Estate and his children, for the imposition of a
constructive trust and a declaration of Dora’s rights in Shlomo’s property. That Kings County action was transferred to Surrogates Court in October 2003. Dora died in November 2008 without exercising her right of election. ( see amended complaint ).”

The complaint alleges that “on July 23, 2013 the Kings County Surrogate granted a summary judgment motion filed by the executor of Shlomo’s estate, holding that since no notice complying with the statutory requirements of EPTL §5-1.1-A was served and filed before Dora’s death, her right of election was never exercised and her right of election died with her … ” that decision was appealed and “on July 15, 2015 the Appellate Division affirmed the Surrogate’s decision, holding that Dora ‘did not follow the procedure outlined in EPTL §5-1.1-A(d) for exercising a spouse’s right of election” (see amended complaint 1J1J63, 68 moving papers Exhibit A). The complaint further alleges that “despite approximately 13 years, the [constructive trust] action had gone nowhere. The Goldberg defendants failed to take adequate party and non-party discovery and otherwise prepare the action for trial prior to the discovery cut-off. In or around June 2015, when the action was finally scheduled for trial, the Goldberg defendants informed the Surrogate’s Court that they could not
try the action due to a scheduling conflict and sought an adjournment of the trial date.
The Surrogate’s Court rejected the Goldberg defendants’ eleventh hour request for an
adjournment and struck the action from the trial calendar. When the Goldberg defendants neglected the action and failed to move to restore the action to the trial calendar, the defendants in the action moved to dismiss the action for failure to prosecute. Despite having accomplished nothing for Dora or the Estate during the 13 years of legal representation, the Goldberg defendants managed to charge Dora and the Estate in excess of $100,000 for the Retained matters, most of which is attributable to litigating the Goldberg defendant’s own failure to take the necessary steps to
exercise Dora’s right of election and, to a lesser extent, working on the action which
was stricken from the trial calendar due to the Goldberg defendants’ negligent acts and
omissions. (see amended complaint 1[1[69-74 moving papers Exhibit A; decision/order
Hon. S. Johnson dated May 10, 2016 papers in opposition Exhibit A). ”

“CPLR 1[3101 (a) calls for the “production of all matter material and necessary in the prosecution or defense of an action … ” CPLR § 3124 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. However, While discovery should be liberal, information sought must be material and necessary, and meet the test of usefulness and reason (Manley v. New York City Housing Authority, 190 A.D.2d 600, 593 N.Y.S.2d 808 [1st. Dept. 1993)). The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound
discretion of the Supreme Court (Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S. 2d 320 [2″d. Dept. 2009)). ”

“CPLR 1[3101 (a) calls for the “production of all matter material and necessary in the prosecution or defense of an action … ” CPLR § 3124 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. However, While discovery should be liberal, information sought must be material and necessary, and meet the test of usefulness and reason (Manley v. New York City Housing Authority, 190 A.D.2d 600, 593 N.Y.S.2d 808 [1st. Dept. 1993)). The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound
discretion of the Supreme Court (Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S. 2d 320 [2″d. Dept. 2009)). “