DECISION/ORDER In this contested probate proceeding, objectants Delise Vann and Dexter John move the court for an order compelling the deposition of non-party witness Julian Van Tull. Julian Van Tull has entered a limited appearance in order to oppose the motion. For the reasons that follow, the motion is denied. BackgroundDecedent died testate on February 27, 2012, survived by his three children, including the two objectants. The administration of his estate has taken a somewhat circuitous path since then. Initially, Delise Vann petitioned this court for letters of administration, which the court issued on June 25, 2012. Pursuant to her authority thereto, Ms. Vann then commenced an action in Suffolk County Supreme Court, under index number 12-35522 (the “Supreme Court action”), against Julian Van Tull and Keisha John asserting, inter alia, that the defendants committed fraud and conversion.On January 21, 2016, during the pendency of the Supreme Court action, decedent’s sister, Norma Collymore, filed the instant probate petition in this court, seeking to probate an alleged last will and testament dated June 5, 2002. The propounded instrument names three of decedent’s sisters, including petitioner, as co-executors, bequeaths all tangible personal property to decedent’s five sisters, and bequeaths the residuary to a revocable trust.On February 25, 2016, Mr. Van Tull, along with petitioner, filed an order to show cause in this court, seeking to transfer the Supreme Court action and to revoke Delise Vann’s letters of administration. Given the probate petition, this court revoked the letters of administration previously issued to Ms. Vann and held any additional relief in abeyance.Probate continued and Ms. Vann, along with her brother Dexter John, have filed objections alleging lack of due execution, lack of capacity, and undue influence. The parties have entered into a pre-trial order and an amended pre-trial order and have agreed to a discovery schedule.Currently, objectants move to compel the deposition of Julian Van Tull, a non-party witness domiciled out of state. Objectants assert that Mr. Van Tull’s testimony is critical, as he is believed to have taken decedent to the attorney draftperson’s office, had a power of attorney, and diverted decedent’s assets. Mr. Van Tull has entered a limited appearance through counsel in order to oppose the motion due to an alleged lack of personal jurisdiction.DiscussionA subpoena is valid only where the court has jurisdiction over the subpoenaed party (Cherfas v. Wolf, 2008 NYLJ LEXIS 1240 [Sup Ct, Kings County] [citing CPLR 308-318; Keane v. Kamin, 94 NY2d 263]). Here, Mr. Van Tull is neither a party nor a New York domicilliary and, as such, this court lacks in personam jurisdiction over him absent his consent (id. [citing Sessa v. Board of Assessors of the Town of North Elba, 46 AD3d 1163 [3d Dep't 2007]).Objectants maintain that, by filing the petition to have Ms. Vann’s letters of administration revoked and to transfer the Supreme Court action, Mr. Van Tull consented to the court’s jurisdiction. Presumably, their assertions are based upon CPLR 320(b). Pursuant thereto, “an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction…is asserted” (CPLR 320[b]).As the statute suggests, one’s appearance connotes an appearance in a particular action (see, e.g., Cherfas, supra [a voluntary appearance "amounts to complete consent to that court's jurisdiction in the matter"] [emphasis added]; Astor v. Astor, 5 Misc2d 514 [Sup Ct, New York County]). In fact, critical to any analysis of personal jurisdiction is the presence of reasonable notice of the action (see Hays v. Hays, 111 Misc2d 722 [Sup Ct, Nassau County]). While the revocation of Ms. Vann’s letters of administration may have been a precursor to the instant probate proceeding, it is an insufficient basis upon which to assert jurisdiction. The two matters are separate proceedings, with different subject matter and parties. Mr. Van Tull’s appearance in another matter does not confer upon this court jurisdiction to adjudicate any and all claims involving him (see Astor, supra), and to compel his deposition in a distinct proceeding in which he is not a party would violate his due process rights.Objectants are not without recourse, and may seek an open commission to depose Mr. Van Tull (CPLR 3108, see also SCPA 508[2]; Matter of Jacobs, 2013 NY Slip Op 50836[U] [Sur Ct, Nassau County]). Such an application, however, must be based upon more than the affidavit of counsel submitted in support of the instant motion (Matter of Jacobs, supra [citing Matter of Gerib, 1996 NYLJ LEXIS 2561 [Sur Ct, Westchester County]). Accordingly, objectant’s motion is denied.ConclusionFor the reasons set forth herein, it isORDERED that objectant’s motion to compel the deposition of Julian Van Tull is denied; and it is furtherORDERED that a conference is scheduled with a member of the court’s law department on Wednesday, August 29, 2018 at 9:30 a.m. at the Suffolk County Surrogate’s Court, 320 Center Drive, Riverhead, New York.
