In re the Estate of Rothko

Order, Surrogate’s Court, New York County, entered April 5, 1973, denying motion of Attorney-General for protective order and granting cross motion directing examination of Attorney-General, unanimously reversed, on the law and in the exercise of discretion, and cross petitioner appellant’s motion for a protective order vacating the notices to examine him granted, and the cross motion denied. Cross petitioner appellant shall recover of respondents-respondents Reis and Stamos and The Mark Rothko Foundation, Inc., $40 costs and disbursements of this appeal. In this proceeding to remove executors it is sought to examine the Attorney-General by his assistant in charge of the matter as an adverse party. While nominally a party, in fact the Attorney-General appears only as the statutory representative of ultimate beneficiaries of charitable bequests under the will (EPTL 8-1.1, subd. [f]). As such, he may be examined only upon a showing of special or unusual circumstances and none are demonstrated (People v. Volkswagen of Amer. 41 A D 2d 827). Concur — Markewich, J. P., Murphy, Lane, Tilzer and Macken, JJ.