IN RE: a Proceeding Pursuant to SCPA 2103 and 2104 to Turnover Property Withheld in the Estate of John A. Catapano a/k/a JOHN CATAPANO (2026)

The following papers were read and considered in accordance with CPLR 2219 (a) and 22 NYCRR 207.7 on the discovery motion, via Order to Show Cause signed December 12, 2025, of Petitioner ANTONIO P. CATAPANO made, pursuant to CPLR 3120 and 4503 (b), to compel Daniels, Porco, & Lusardi, LLP and Mr. David E. Daniels, Esq., for an order to produce "all correspondence, memoranda[,] and notes concerning . . . [the] affairs" of the decedent JOHN A. CATAPANO a/k/a JOHN CATAPANO "and/or the disposition of [the] [d]ecedent's assets, including, but not limited to, all documents concerning next of kin, assets of [the] [d]ecedent, and forms used in the consultation, all attorney's writings, correspondence, memoranda, notes, diaries, appointment books, journals, time sheets, computer printouts, bills, cancelled checks, statements, and/or invoices concerning the performance of all legal and other services for [the] [d]ecedent relevant to [the] [d]ecedent's affairs and/or disposition of [the] [d]ecedent's assets":

Motion Papers:

• Petitioner's Order to Show Cause (signed December 12, 2025); Counsel's Affirmation in Support, Exhibits A-B

• Counsel's Affirmation in Opposition on behalf of the Respondents, Exhibit 1

• Counsel's Affirmation in Reply in Further Support, Exhibits C-F

Upon review of the aforesaid papers,¹ the Court finds, holds, and determines as follows:

I. Background

The general facts of this case are more fully set forth in this Court's decision and order, dated March 20, 2025, on respondents' motion to dismiss the underlying turnover petition (Matter of Catapano, 85 Misc 3d 1242[A] [Sur Ct 2025]) (hereinafter referred to as "the prior decision") — which is incorporated, in full, by reference herein. In it, the Court held, inter alia, that petitioner's claims of conversion and unjust enrichment that were pled in his turnover petition were sustained and survived the early pleading stage (see id. at *7-12, 17-18). The parties have been engaged in ensuing discovery since.

On December 12, 2025, petitioner, by order to show cause, filed the instant discovery motion seeking various items that are delineated above (see supra at 1). Respondents object to the motion, having filed opposition papers on January 27, 2026. Petitioner, in turn, filed reply papers on January 29, 2026. On the next day, the Court conducted oral argument on the motion (see Uniform Rules for the Surrogate's Court [22 NYCRR] §§ 207.7 [f], [g]). Upon due consideration, Petitioner's motion to compel various discovery is denied for the reasons enunciated herein.

II. Legal Discussion and Analysis

Before turning to the discovery motion at hand, the heart of the conflict between the parties here is centered on who can waive the attorney-client privilege on behalf of the decedent here, insofar as it concerns potential documents about the decedent's making of the will and his estate disposition, which may or may not be in the possession of his estate-planning attorneys. The parties advance different views and positions on this dispute. The Court holds that, under the particular facts and circumstances of this case, one coexecutor (a nonparty to this turnover proceeding) and a limited administrator (the petitioner herein) did not sufficiently waive the attorney-client privilege on behalf of the decedent, absent the express written consent of the other coexecutrix (one of the respondents herein) (see Discussion of the Attorney-Privilege and Waiver Thereof, infra at 2-6).

A. The Attorney-Client Privilege and Waiver Thereof

Petitioner asserts that he, as the limited administrator, and one of the coexecutors (namely, John Aaron Catapano)² have agreed to waive the attorney-client privilege on behalf of the decedent; however, the other respondent-coexecutrix, Angelina C. Valentini, declines to waive such privilege by executing a written waiver in that regard. More specifically, petitioner claims that he — as the limited administrator made by subsequent appointment under SCPA 702 (9) — has legal authority to waive the attorney-client privilege on behalf of the decedent's estate. Petitioner, alternatively, seems to argue that he can waive such privilege together with one of the coexecutors. Petitioner further argues that the waiver of the attorney-client privilege is a several, not joint, power of the cofiduciaries that can be exercised unilaterally by a single coexecutor.

The respondents contend otherwise by urging that petitioner, as only a limited administrator, is excluded from the exhaustive list of fiduciaries that are delineated in CPLR 4503 (a) (2) (B), thus meaning that petitioner is without the requisite authority to waive the attorney-client privilege. In addition, the respondents advance that the decision to waive the attorney-client privilege is a discretionary function and a "joint" power of the coexecutors who must act collectively together in relation to the waiver — not a several power, according to petitioner, where one coexecutor can unilaterally act. This Court agrees with the respondents' premise vis-à-vis waiver of the attorney-client privilege and the consent required by both coexecutors in order to exercise the joint power.

"The purpose of the attorney-client privilege, codified in CPLR 4503 (a), is to allow 'one seeking legal advice to communicate with counsel for this purpose secure in the knowledge that the contents of the exchange will not later be revealed against the client's wishes' " (Matter of Clouse, 292 AD2d 675, 676 [3d Dept 2002], quoting People v Osorio, 75 NY2d 80, 84 [1989]). "While 'the privilege belongs to the client and attaches if information is disclosed in confidence to the attorney for the purpose of obtaining legal advice or services the burden of proving each element of the privilege rests upon the party asserting it' " (Matter of Clouse, 292 AD2d at 676 [internal brackets and ellipses omitted], quoting People v Osorio, 75 NY2d at 84).

Ordinarily, "[a] waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication in issue or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information. Moreover, a waiver may be found where a party engages in selective disclosure, as a party may not rely on the protection of the privilege regarding damaging communications while disclosing other self-serving communications" (Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 91 AD3d 753, 754 [2d Dept 2012] [internal quotation marks and citations omitted]; accord Siegel v Snyder, 202 AD3d 125, 132 [2d Dept 2021]). "[T]he protection of the attorney-client privilege is curtailed to the extent that certain exceptions to the privilege have been created" (id. [noting that CPLR 4503 (b) creates an "exception for (the) deceased client's communications with counsel as to the preparation, execution, or revocation of any will, revocable trust, or other relevant instrument"]).

Petitioner's arguments predicated on any purported waiver of the attorney-client privilege between the decedent and his estate-planning attorneys are unpersuasive and without merit. CPLR 4503 (a) (1) codifies the attorney-client privilege (see CPLR 3101 [b] [stating that "(u)pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable"]). The Court is unconvinced by petitioner's legal theory regarding his purported several power(s) — being issued limited letters of administration solely for the purpose of commencing and prosecuting a discovery and turnover proceeding (see SCPA 702 [9]; 2103) — with the joint powers of the coexecutors who are the actual personal representatives of the decedent (see CPLR 4503 [a] [2] [B]).

The Second, Third, and Fourth Departments have all reaffirmed the settled legal principle that an executor/executrix of an estate has the authority to waive a decedent's attorney-client privilege of his or her decedent (see Matter of Thomas, 179 AD3d 98, 100-102 [4th Dept 2019]; Matter of Johnson, 7 AD3d 959, 960-961 [3d Dept 2004], lv denied 3 NY3d 606 [2004]; Matter of Bassin, 28 AD3d 549, 550 [2d Dept 2006]; Mayorga v Tate, 302 AD2d 11, 18 [2d Dept 2002]).

Just as clients may waive the attorney-client privilege during their lifetime if they deem it to be in their best interests, "personal representatives [of a decedent's estate] may also waive the privilege in the interest of [the] decedent['s] estate[ ]" (Matter of Walsh, 17 Misc 3d 407, 413 [Sur Ct, Bronx County 2007]). That said, the Court finds that petitioner, based on his narrowly defined status, is not an actual legal "personal representative" of the decedent or his estate, as that term is exactingly defined in CPLR 4503 (a) (2) (B) (see generally Matter of DelGatto, 98 AD3d 975, 978 [2d Dept 2012]; Estate of Barbano v White, 6 Misc 3d 1029[A], *1 n 2 [Sup Ct, Chenango County 2004]). Other than his blanket assertion, there is no proof, in admissible form, that both coexecutors, as the decedent's personal representatives, are jointly and expressly waiving the attorney-client privilege on behalf of the decedent or his estate (see CPLR 4503 [a] [2] [B]; Matter of DelGatto, 98 AD3d at 978).

Contrary to petitioner's further contention, CPLR 4503 (b) is not applicable here — as is correctly argued by the respondents for the reasons explained in their opposition papers. The mandates of CPLR 4503 (b) provide that "an attorney or his employee shall be required to disclose information as to the preparation, execution[,] or revocation of any will or other relevant instrument, but he [or she] shall not be allowed to disclose any communication privileged under [CPLR 4503] (a) which would tend to disgrace the memory of the decedent" (Matter of Seelig, 302 AD2d 721, 724 [3d Dept 2003]).

Here, this case is clearly not a will contest given that the decedent's last will and testament was admitted to probate in 2010 — more than 15 years ago (see Matter of Catapano, 85 Misc 3d 1242[A] at *2). Because this discovery turnover proceeding is not an "action involving the probate, validity[,] or construction of a will," nor does it concern a trust (CPLR 4503 [b]), the statutory exception to the attorney-client privilege under CPLR 4503 (b) does not exist in this case (see id.; Mayorga v Tate, 302 AD2d at 16; compare Matter of MacLeman, 9 Misc 3d 1119[A], *5 [Sur Ct, Westchester County 2005]).

Next, inapposite to petitioner's supposition, there is a discernable and inherent difference between joint and several powers. EPTL 10-10.7 — entitled "Exercise of powers by multiple fiduciaries; joint and several powers —states, in relevant part, that "a joint power other than a power of appointment . . . , conferred upon three or more fiduciaries, as that term is defined in [EPTL] 11-1.1, by the terms of such instrument, or by statute, or arising by operation of law, may be exercised by a majority of such fiduciaries." That section continues that "[s]uch a power conferred upon or surviving to two such fiduciaries may be exercised jointly by both such fiduciaries or by the survivor fiduciary, unless contrary to the express terms of the instrument creating the power" (id.). The statute concludes by reading that "[t]his section shall not affect the right of any one of two or more personal representatives of a decedent to exercise a several power" (id.).

There is very minimal case law containing a meaningful discussion distinguishing several versus joint powers and concerning the issue of a decisive vote when there is a deadlock between coexecutors administering a will. Specifically, Matter of Jacobs (127 Misc 2d 1020 [Sur Ct, New York County 1985]) stands for the proposition that "[w]here there are only two fiduciaries . . . the consent of both fiduciaries is required to exercise a joint power" (id. at 1022).

In Jacobs, Surrogate Renee R. Roth artfully explained the inherent differences between a joint power and a several power that is shared among cofiduciaries:

"The power to dispose of this fund is a joint power as distinguished from a several power. In general, the decisions define a joint power as one which requires the exercise of discretion. On the other hand, those powers which are purely ministerial (collect assets, deposit funds of the estate in a bank, etc.) are considered several powers. Section 10-10.7 of the EPTL discusses how these types of powers are to be exercised. A several power may be exercised by each fiduciary individually. Where there are more than two fiduciaries, a joint power may be exercised by a majority. Where there are only two fiduciaries, and the will does not contain any direction for breaking a tie vote, the consent of both fiduciaries is required to exercise a joint power" (id. [citations omitted] [emphasis added]).

The Court declines to depart from this limited, persuasive precedent. "EPTL 10-10.7 specifically outlines the exercise of powers by multiple fiduciaries" and "the statute does not operate in a vacuum," because "a fiduciary is allowed to delegate the exercise of a joint power to a cofiduciary when the cofiduciary has an expertise in the matter" (Matter of Farley, 186 Misc 2d 355, 357 [Sur Ct, Onondaga County, 2000]; see Bishop v Rubin, 228 AD2d 222, 224 [1st Dept 1996] [noting that cotrustees must both sign documents together as "required by law"]; see generally Matter of Chadrjian, 10 Misc 3d 1077[A], *5 [Sur Ct, Nassau County 2006]; Margaret Valentine Turano, Prac Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 10-10.7 at 688-689).

EPTL 10-10.7 allows coexecutors to "exercise a several power" alone (id.; see Matter of Rubin, 147 Misc 2d 981, 983 [Sur Ct 1990], affd 172 AD2d 841 [2d Dept 1991]). More importantly, "EPTL 10-10.7 authorizes departures from its directions by providing for contrary express provisions in the controlling instrument" (id.; see Matter of Riker, NYLJ, Mar. 10, 1982 at 12, col 5 [Sur Ct 1982]). "[E]ven in the absence of limitations on the powers of a co[ ]fiduciary, the unilateral right of co[ ]executors to act should be subject to review by their co[ ]fiduciaries since it is the duty of each fiduciary" (Matter of Rubin, 147 Misc 2d at 983). Here, the decedent's will, as the controlling instrument, is silent on the exercise of joint powers and affirmative waivers on matters.

This case also does not present a scenario where the provisions of the will contain a separate procedure or alternative in the event if there is a deadlock between the coexecutors concerning the exercise of a joint power — i.e., submission for review to a neutral advisor (see e.g. Matter of Rubin, 143 Misc 2d 303, 304-305 [Sur Ct, Nassau County 1989]). Indeed, in making a will, a testator has a "right . . . to limit, qualify, or condition the authority granted" to his or her fiduciary(ies) as the testator so desires based on his or her last wishes (id. at 304). "The appointment of an executor may be qualified by limitations as to time (when the appointment shall begin or end), or place (different executors may be appointed in different geographic areas), or subject matter (one executor may be given exclusive authority over a particular asset or group of assets)" (id. at 304-305). The Court sees no reason why the same logic should not apply to the mutual exercise of joint powers in relation to any sort of express waivers made on behalf of the decedent's personal representative(s) (see CPLR 4503 [a] [2] [B]; EPTL 10-10.7; cf. Matter of Rubin, 143 Misc 2d at 304-305).

Although the motion papers suggest that the nonparty coexecutor has consented to waiving the attorney-client privilege on behalf of the estate, the respondent-coexecutrix has intentionally not. This dilemma is heightened because the decedent's will, as the controlling instrument, does not provide any direction or guidance on how to resolve a dispute between the two coexecutors who hold a joint power (see EPTL 10-10.7). With that said, the joint power of decedent's personal representatives (the coexecutors) does not extend to the petitioner, insomuch as he is clearly not within the category of individuals who is deemed a "personal representative" within the meaning of CPLR 4503 (a) (2) (B). Thus, petitioner's argument that his consent, coupled with the coexecutor's consent, is sufficient to waive the attorney-client privilege has no teeth and must fail.

The petitioner failed to submit sound and intelligible argument on that issue. "In our adversarial system of adjudication, [courts] follow the principle of party presentation. The parties frame the issues for decision, while the court serves as neutral arbiter of matters the parties present" (Clark v Sweeney, 607 US 7, 9 [2025] [internal quotation marks and citations omitted]). This is to say that if a party fails to clearly articulate a cogent argument, with the requisite specificity when needed, a court does not assume the role of advocate. Instead, a court normally decides the issues that a party chose to present. Indeed, "[t]he Court of Appeals has cautioned the judiciary that 'we are not in the business of blindsiding litigants, who expect us to decide matters on rationales advanced by the parties, not arguments their adversaries never made' " (Wells Fargo Bank, N.A. v St. Louis, 229 AD3d 116, 122 [2d Dept 2024] [internal brackets omitted], quoting Misicki v Caradonna, 12 NY3d 511, 519 [2009]).

The following is to amplify why this Court is unconvinced by the contentions raised in petitioner's motion since he incorrectly conflates the law regarding the exercise of joint and several powers and fails to clearly articulate his legal arguments. Presiding in the role of a neutral decisionmaker, this Court declines to interject itself by raising argument(s) that a party failed to make in the first instance. The Court now turns to the petitioner's motion to compel various document production from the decedent's estate-planning attorneys.³

B. The Document Discovery Sought by Petitioner

We begin with the fundamental purpose of discovery in civil actions and proceedings. It is axiomatic that full disclosure is necessary with respect to relevant and material issues to narrow the issues at trial (see CPLR 3101). Discovery in civil cases is governed by CPLR 3101 (a), which directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." As to nonparties, disclosure is available to the parties if proper notice is provided to the nonparty, stating the circumstances or reasons such disclosure is sought (see CPLR 3101 [a] [4]).

Here, petitioner requests that the decedent's estate planning attorneys be compelled to produce "all correspondence, memoranda[,] and notes concerning . . . [the] affairs" of the decedent . . . "and/or the disposition of [the] [d]ecedent's assets, including, but not limited to, all documents concerning next of kin, assets of [the] [d]ecedent, and forms used in the consultation, all attorney's writings, correspondence, memoranda, notes, diaries, appointment books, journals, time sheets, computer printouts, bills, cancelled checks, statements, and/or invoices concerning the performance of all legal and other services for [the] [d]ecedent relevant to [the] [d]ecedent's affairs and/or disposition of [the] [d]ecedent's assets."

In seeking production, petitioner claims that all of the document demands are material and necessary in this discovery and turnover proceeding, brought under SCPA 2103 and 2104, inasmuch as they can better illuminate the decedent's donative intent surrounding the subject checking accounts (see Matter of Catapano, 85 Misc 3d 1242[A] at *2-5, 19). Petitioner asserts that the decedent's estate planning attorneys have "extensive experience" and that the discussion(s) that the decedent had with his estate attorney (Mr. Daniels) about his "scheme of disposition" are material. Respondents oppose the discovery motion. In bringing this motion, petitioner heavily relies on the undersigned's prior decision, quoting verbatim the potential cursory issues that the undersigned framed therein:

"In the Court's view, while petitioner's claims of conversion and unjust enrichment have survived a motion to dismiss during this early pleading stage, the Court is unable to determine critical factual issues on this limited record — i.e., (i) whether decedent had a donative intent when he opened the joint bank accounts with respondents; (ii) whether the bank funds may constitute an inter vivos gift to respondents; (iii) whether the subject bank accounts at issue were opened as a matter of convenience or as joint accounts; and (iv) whether petitioner has met the clear and convincing burden standard elucidated above in connection with the joint bank accounts. Resolution of these issues necessarily entail factual determinations that are not appropriate on a pre-answer motion to dismiss. Existing factual issues warrant further development of the record. Additional discovery is needed to resolve material issues of fact. The Court cannot decide those issues, as a matter of law, at this time without the benefit of a more sufficiently developed record" (id. at *19).

The New York Court of Appeals has expressed that "[w]hat is 'material and necessary' is left to the sound discretion of the [trial court] and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000] [internal quotation marks and citation omitted]). "The test is one of usefulness and reason" (id.). "A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is 'material and necessary' — i.e., relevant — regardless of whether discovery is sought from another party or a nonparty" (Forman v Henkin, 30 NY3d 656, 661 [2018] [internal citation omitted]; see Lurie v Lurie, 226 AD3d 992, 994-995 [2d Dept 2024]).

CPLR 3101 "embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise" (Forman v Henkin, 30 NY3d at 661 [internal quotation marks and citation omitted]). That said, "[t]he right to disclosure, although broad, is not unlimited" (id.). With these principles in mind, the Court summarily addresses petitioner's motion to compel various document discovery relative to the decedent and his estate-planning attorneys.

The Court denies petitioner's sweeping discovery requests as overbroad and cumbersome. "Unlimited disclosure . . . is not required" (Accent Collections, Inc. v Cappelli Enterprises, Inc., 84 AD3d 1283, 1283 [2d Dept 2011]). "Generally, the supervision of disclosure is left to the broad discretion of the trial court, which must balance the parties' competing interests" (id.).

Based on the various material sought by petition in connection with this application, the Court holds that petitioner's motion to compel various document discovery from the decedent's estate-planning attorneys is overly broad and burdensome (see CPLR 3124; Pesce v Fernandez, 144 AD3d 653, 655 [2d Dept 2016]). Furthermore, petitioner's subject motion regarding the production of voluminous documents sought in making the will appears to be made on pure speculation. Other than his bald, uncorroborated assertions, petitioner has proffered nothing through discovery or otherwise that the decedent's estate-planning attorneys have actual knowledge of the decedent's donative intent in connection with the checking accounts that he opened in Connecticut.

It seems that petitioner is pursuing an impermissibly broad "fishing expedition" grounded in unexplained speculation, by requesting excessive production of documents concerning the creation of the will — some of which may arguably constitute attorney work product that may also be privileged and "not . . obtainable" (CPLR 3101 [c]). "Attorney work product under CPLR 3101 (c), which is subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy" (Bent-Anderson v Singh, 209 AD3d 710, 711 [2d Dept 2022] [internal quotation marks and citation omitted]).⁴

In sum, petitioner's discovery motion for a copious amount of disclosure contains such onerous and overbroad demands that it raises questions and casts doubt upon the purpose for which the information is requested. He "fails to give any insight as to the classification of documents sought and [uses] a 'blunderbuss' approach, especially when taken in conjunction" with the breath of documentary material he wants produced by the decedent's estate-planning attorneys (Cvar v Young & Co., 184 AD2d 314, 315 [1st Dept 1992]). As couched, denial of petitioner's motion to compel document discovery from the decedent's estate-planning attorneys is warranted under these circumstances because the document production request seeks irrelevant information, and is overbroad and burdensome (see 30-40 E. Main St. Bayshore, Inc. v Republic Franklin Ins. Co., 115 AD3d 737, 738 [2d Dept 2014]). Therefore, petitioner's motion made by order to show cause is denied in all respects.

To the extent not specifically addressed herein, the parties' remaining contentions have been examined and are either rendered academic or without merit. Any other relief requested that is not squarely addressed herein is denied based on this decision. Accordingly, it is hereby:

Ordered that Order to Show Cause (dated December 12, 2025) by Petitioner ANTONIO P. CATAPANO is denied and dismissed; and it is further

Ordered that the Petitioner's instant document discovery motion is DENIED in its entirety (mot. seq. no. 3); and it is further

Ordered that the attorneys shall personally appear for a Compliance / Status Conference before the undersigned on Friday, June 12, 2026, at 2:00 p.m. (Courtroom 306).

The foregoing constitutes the Decision and Order of this Court.

Dated: May 21, 2026

Carmel, New York

E N T E R:

HON. ANTHONY R. MOLÉ

SURROGATE

FOOTNOTES

1.   The Court also takes judicial notice of the record of the estate file concerning and filings made thereunder.

2.   The petitioner and the coexecutors are the decedent's children.

3.   The Court declines to reach the ancillary issue of the parties' quarrel over the arguable closure of discovery in this matter. In short, petitioner has not been absolutely foreclosed from seeking permission to reopen discovery (see Bison Capital Corp. v Hunton & Williams LLP, 238 AD3d 505, 506 [1st Dept 2025]).

4.   "Materials or documents that could have been prepared by a layperson do not fall within the attorney work product exception" (Salzer v Farm Family Life Ins. Co., 280 AD2d 844, 846 [3d Dept 2001]).

Anthony R. Molé, J.