General
In the Matter of the Estate of Hans Goldschmidt, Deceased. Barry Golomb, as Executor of Hans Goldschmidt, Deceased, Respondent; Hertha Goldschmidt, Appellant
281 A.D.2d 277722 N.Y.S.2d 146·New York Supreme Court, Appellate Division·2001·NY
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Opinion
In the Matter of the Estate of Hans Goldschmidt, Deceased. Barry Golomb, as Executor of Hans Goldschmidt, Deceased, Respondent; Hertha Goldschmidt, Appellant.
[722 NYS2d 146]
[MAJORITY]
—Order, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about January 12, 2000, which, in an accounting proceeding, granted petitioner’s motion for 22 NYCRR part 130 sanctions to the extent of awarding petitioner attorneys’ fees in the amount off $10,000 incurred in opposing objectant’s motion for a protective order, unanimously reversed, on the law and the facts, without costs, the award vacated and petitioner’s motion for sanctions denied.
Objectant’s motion for a protective order was not frivolous. While the attorney for the 92-year-old objectant can be faulted for twice canceling the deposition within a four-month period, and for offering only an unsworn letter from objectant’s physician in support of the motion for a protective order that was made on the day the deposition was to be held, the motion for a protective order clearly was not completely without merit in fact or undertaken primarily to delay, harass or cause expense (22 NYCRR 130-1.1 [c]; cf., Matter of Minister of Refm. Prot. Dutch Church v 198 Broadway, 76 NY2d 411). Certainly the second cancellation and the ensuing motion should not have been completely unanticipated, objectant’s attorney having previously expressed his concern for objectant’s frailty on several occasions, including a written, reasonably full explanation provided shortly after the first cancellation of why objectant’s condition did not permit her deposition. Nor does such concern appear, at least from the transcript of objectant’s deposition, to have been completely unfounded. We would also note that the order on appeal fails to comply with 22 NYCRR 130-1.1 (b) in that it does not indicate whether the award was to be paid by objectant, her attorney, or both. Concur — Nardelli, J. P., Williams, Tom, Andrias and Buckley, JJ.