| Matter of Astor |
| 2009 NY Slip Op 04055 [62 AD3d 867] |
| May 19, 2009 |
| Appellate Division, Second Department |
| In the Matter of Brooke Russell Astor, Also Known as BrookeAstor, Also Known as Brooke R. Astor, Deceased. J.P. Morgan Chase Bank, N.A., et al.,Respondents; Anthony D. Marshall, Appellant. (Proceeding No. 1.) In the Matter of BrookeRussell Astor, Also Known as Brooke Astor, Also Known as Brooke R. Astor, Deceased.Anthony D. Marshall, Appellant; J.P. Morgan Chase Bank, N.A., et al., Respondents.(Proceeding No. 2.) In the Matter of Brooke Russell Astor, Also Known as Brooke Astor, AlsoKnown as Brooke R. Astor, Deceased. Philip C. Marshall et al., Respondents; Anthony D.Marshall, Appellant. (Proceeding No. 3.) |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman and MarionR. Buchbinder of counsel), for respondent Ultimate Charitable Beneficiaries. Debevoise & Plimpton LLP, New York, N.Y. (Robert N. Shwartz of counsel), forrespondent The New York Public Library, Astor, Lenox, and Tilden Foundations. Farrell Fritz, P.C., Uniondale, N.Y. (John J. Barnosky of counsel), for respondent [*2]Metropolitan Museum of Art (no brief filed).
In three probate proceedings for the probate of several purported wills of Brooke RussellAstor, also known as Brooke Astor, also known as Brooke R. Astor, Anthony D. Marshall, thedecedent's son, appeals, as limited by his brief, from (1) so much of an order of the Surrogate'sCourt, Westchester County (Scarpino, S.), dated January 4, 2008, as denied his motion, inter alia,to stay discovery pending resolution of a related criminal proceeding against him, and (2) somuch of an order of the same court dated September 5, 2008, as denied his motion for aprotective order and directed him to turn over to the court all documents responsive to thediscovery demands over which he asserted any privilege, and a "privilege log" indicating thelegal ground asserted for withholding each document in accordance with CPLR 3122 (b), for incamera inspection by the court to determine whether the privilege applies.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.
This appeal arises out of three probate proceedings commenced after the death of BrookeRussell Astor, also known as Brooke Astor, also known as Brooke R. Astor on August 13, 2007.The appellant Anthony D. Marshall, the decedent's son, is the proponent of a purported willdated January 30, 2002, together with a first, second, and third codicil to that will. The secondand third codicils are the subject of certain allegations in a criminal proceeding against Marshalland Francis X. Morrissey. Three sets of document demands were served on the appellant by theparties involved in the probate proceedings, including the Attorney General of the State of NewYork, the New York Public Library, Astor, Lenox, and Tilden Foundations, the MetropolitanMuseum of Art, and various other charitable beneficiaries.
The appellant moved, among other things, to stay discovery in the probate proceedingspending resolution of the criminal proceeding. Upon denial of that motion, and after furtherdiscovery, the appellant moved for a protective order on the ground that compelling productionof the documents would violate his Fifth Amendment privilege against self-incrimination.
"Generally, the trial court is afforded broad discretion in supervising disclosure and itsdeterminations will not be disturbed unless that discretion has been clearly abused. . . However, the Appellate Division is vested with its own discretion andcorresponding power to substitute its own discretion for that of the trial court, even in theabsence of abuse" (Those CertainUnderwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008][internal quotation marks and citations omitted]; see Andon v 302-304 Mott St. Assoc.,94 NY2d 740, 745 [2000]). Here, with regard to both orders appealed from, the Surrogate'sCourt providently exercised its discretion in denying the relief sought by the appellant.
"Although the pendency of a criminal proceeding does not give rise to an absolute rightunder the United States or New York State Constitutions to a stay of a related civil proceeding. . . 'there is no question but that the court may exercise its discretion to stayproceedings in a civil action until a related criminal dispute is resolved' " (DeSiervi vLiverzani, 136 AD2d 527, 528 [1988], quoting Klitzman, Klitzman & Gallagher v Krut,591 F Supp 258, 269-270 n 7 [1984], affd 744 F2d 955 [1984]). However, whilecourts have recognized the difficulty faced by defendants in choosing between presentingevidence in their own behalf and asserting their Fifth Amendment rights, "a court need notpermit a defendant to avoid this difficulty by staying a civil action until a pending criminal [*3]prosecution has been terminated" (Steinbrecher v Wapnick,24 NY2d 354, 365 [1969]; Access Capital v DeCicco, 302 AD2d 48, 53 [2002];State of New York v Carey Resources, 97 AD2d 508, 509 [1983]). Here, although someof the subject demands are for documents that could be incriminating in connection with therelevant counts in the criminal indictment against the appellant, "that the witness may invoke theprivilege against self-incrimination is not [necessarily] a basis for precluding civil discovery"(State of New York v Carey Resources, 97 AD2d at 509). This is especially so where, ashere, the party invoking the privilege is not a defendant who, if forced to forgo production ofself-incriminating evidence, would suffer the severe prejudice of being deprived of a defense(see e.g. Britt v International Bus Servs., 255 AD2d 143 [1998]), but rather a petitionerin a probate proceeding. Contrary to the appellant's contentions, his constitutional privilegeagainst self-incrimination has been sufficiently protected by the court's ruling in the order datedSeptember 5, 2008.
"[A] blanket refusal to answer questions based upon the Fifth Amendment privilege againstself-incrimination cannot be sustained absent unique circumstances, and . . . theprivilege may only be asserted where there is reasonable cause to apprehend danger from a directanswer" (Chase Manhattan Bank, Natl. Assn. v Federal Chandros, 148 AD2d 567, 568[1989]; see State of New York v Carey Resources, 97 AD2d at 509). "While the witnessis generally the best judge of whether an answer may tend to be incriminating . . .when the danger of incrimination is not readily apparent, the witness may be required toestablish a factual predicate" (State of New York v Carey Resources, Inc., 97 AD2d at509; see Flushing Natl. Bank v Transamerica Ins. Co., 135 AD2d 486, 487 [1987]). Insuch a case, "in order to effectively invoke the protections of the Fifth Amendment, a party mustmake a particularized objection to each discovery request" (Chase Manhattan Bank, Natl.Assn. v Federal Chandros, 148 AD2d at 568; see Matter of Lieb v Henry, 99 AD2d757, 758 [1984]; State of New York v Carey Resources, 97 AD2d at 509).
The Fifth Amendment privilege "protects a person only against being incriminated by hisown compelled testimonial communications" (United States v Doe, 465 US 605, 611[1984] [internal quotation marks omitted]; see Fisher v United States, 425 US 391, 408[1976]). Because it is undisputed that the appellant was not compelled to create the documents atissue here, his Fifth Amendment privilege against self-incrimination "would not be violated bythe fact alone that the [documents] on their face might incriminate [him]" (United States vDoe, 465 US at 611 [internal quotation marks omitted]; see Fisher v United States,425 US at 409). Instead, the appellant must show that the very act of producing thedocuments, if compelled by the court, would "have testimonial aspects and an incriminatingeffect" (United States v Doe, 465 US at 612; see Fisher v United States, 425 USat 410-411). The act of production of documents may be testimonial in that it establishes "theexistence, authenticity, and custody of items that are produced" (United States v Hubbell,530 US 27, 40-41 [2000]).
Here, since it is not readily apparent whether production of the documents in question wouldbe testimonial or have an incriminating effect, the proper procedure is precisely what theSurrogate ordered in this case: that the party seeking to protect documents from disclosure"establish a factual predicate" (State of New York v Carey Resources, 97 AD2d at 509;see Flushing Natl. Bank v Transamerica Ins. Co., 135 AD2d at 488) by "compil[ing] aprivilege log in order to aid the court in its assessment of a privilege claim and enable it toundertake in camera review" (Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d434, 442 [2003]; see Matter of Lieb v Henry, 99 AD2d at 758). Mastro, J.P., Balkin,Dickerson and Belen, JJ., concur.