In a proceeding challenging the validity of certain trusts and transactions involving the decedent’s assets that occurred shortly prior to his death, the petitioner, who was the surviving spouse and limited administrator of the decedent’s estate, sought an order directing, the resumption of the respondent’s deposition and compelling him to respond to certain questions.

During therespondent’s deposition, he was advised by his attorney to refuse to answer certain questionson the basis of the Fifth Amendment privilege against self-incrimination. The Nassau County, New York Surrogate’s Court noted that a witness’ refusal to answer a question during a deposition is governed by 22 NYCRR 221.2, which provides, that a witness shall respond to all questions at a deposition, and an attorney shall not direct a witness not to answer a question, except as provided in CPLR 3115, or in order to preserve a privilege or right of confidentiality.

The rule further provides that if the witness does not answer a question, the examining party shall have the right to complete the remainder of the deposition. The court found that the privilege against self-incrimination, claimed by the respondent, exists under the U.S. and New York Constitutions. The privilege will apply even when a resulting prosecution is possible, but not definite, and where the party’s testimony may provide only a portion of the total proof necessary for prosecution of the witness.

Nevertheless, the court ruled that the availability of the privilege is not simply based upon a witness’ declaration that an answer would be incriminatory. Rather, it is dependent upon the court’s assessment of whether the claim is justified. In opposition to the petitioner’s application, respondent’s attorney alleged that although the respondent did not fear criminal prosecution as a result of any response to the questions posed, he was concerned that they might elicit responses indicating a “scintilla of belief” that his conduct was inappropriate.

This wouldjeopardize his right to obtain a liquor license for his business selling alcoholic beverages. The court disagreed and refused to extend the privilege against self-incrimination where the deposition might reflect poorly on the party’s conduct or impact upon his livelihood. Given the uncertainty of the situation, the respondent was directed to appear with his attorney to testify, “in camera” (in private with the judge), regarding the facts underlying his refusal to answer the questions presented by the petitioner’s attorney, so that a determination could be made regarding the application of the privilege, and the scope of his continued deposition.