Steven M. Melley, husband of the executrix of the Estate of Robert S. Kirwood, moves pursuant to CPLR §2304 for an order quashing a subpoena issued by this court dated July 28, 2010 and, in the alternative, for a protective order pursuant to CPLR §3103 limiting the scope of the subpoena. The court entertained oral argument on August 24, 2010. Counsel were allowed to submit supplemental affirmations by August 26, 2010.

The movant's counsel has failed to provide an affirmation of good faith effort as required by 22 NYCRR §202.7. The movant also fails to acknowledge that the precise issues raised on this application were addressed at a conference before my principal court attorney on July 15, 2010 following which the court "so ordered" the subpoena in question to obtain the deposition of the non-party Steven M. Melley pursuant to CPLR Rule 3106(b). Notwithstanding the fact that the movant has failed to comply with the requirements of 22 NYCRR §202.7 and notwithstanding the fact that the precise issues were previously addressed, the court has determined to entertain the instant application in the interest of justice to allow Mr. Melley a full and fair opportunity to be heard with regard to his non-party deposition.

The movant's principal argument on this motion is that the court lacks jurisdiction to issue a subpoena because there is no proceeding pending before it. A petition seeking to probate the will of the decedent was filed in this court on March 20, 2009 and letters testamentary were issued to Phoebe Melley on August 20, 2009. On November 27, 2009, the executrix filed a list of assets-inventory pursuant to 22 NYCRR §207.20(c) disclosing estate assets in excess of five million dollars and non-probate assets of approximately 1.5 million dollars. Three of the estate beneficiaries, children of the decedent, have generally asserted that the executrix, decedent's daughter, misappropriated or diverted estate assets prior to the demise of their father with the assistance of her husband, Steven Melley, who is an attorney and the subject of the subpoena at issue.

Although the petition for probate has been granted and there is no petition now pending, it is not true that the court lacks jurisdiction to issue a "so ordered" subpoena or other orders related to this estate. As the movant's counsel acknowledges in his affirmation in support of the [*2]instant application, "the estate is now in the administration phase which generally begins after the admission of the will to probate...The administration phase ends with the distribution of the estate assets according to the terms of the will." The executrix has not distributed the estate assets as of the date of this application. It is well settled that this court has jurisdiction over any matter that relates to the administration of an estate or the affairs of a decedent. (Matter of Piccione, 57 NY2d 278 [1982]; New York Constitution Article VI, §12(d).)

SCPA §201 provides:

"1.The court has, is granted and shall continue to be vested with all the jurisdiction conferred upon it by the Constitution of the State of New York, and all other authority and jurisdiction now or hereafter conferred upon the court by any general or special statute or provision of law, including this act.

2.This and any grant of jurisdiction to the court shall be deemed an affirmative exercise of the legislative power under § 12(e) of articled VI of the Constitution and shall in all instances be deemed to include and confer upon the court full equity jurisdiction as to any action, proceeding or other matter over which jurisdiction is or may be conferred.

3.The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires."

The New York State Constitution specifically provides, inter alia:

"The surrogate's court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto...and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law." (Constitution Article VI, §12[d].)

As the movant's counsel acknowledges, the subpoena was issued in the context of the "administration of the estate" of the decedent and there is no question that this court has full and complete jurisdiction in law and equity to issue any orders relative to the estate or the affairs of the decedent. (Matter of Pavese, 195 Misc 2d 1, 7 [Surrogate's Court, Nassau County 2002].)

SCPA §202 provides that the proceedings enumerated in the act are not exclusive and that the court is "empowered in any proceeding, whether or not specifically provided for, to exercise any of the jurisdiction granted to it by this act or other provisions of law, notwithstanding that the jurisdiction sought to be exercised in the proceeding is or may be exercised in or incidental to a different proceeding."

The movant and his counsel have also overlooked the specific provisions of SCPA §209(4), which provides that this court has [*3]

the power:

"to determine a decedent's interest in any property claimed to constitute a part of his gross estate subject to estate tax, or to be property available for

distribution under his will or in intestacy or for payment of claims, and to determine the rights of any persons claiming an interest therein, as against the decedent, or as between themselves, and to construe any instruments made by him affecting such property."

SCPA §209(10) provides:

"In the exercise of its jurisdiction, the court shall have all of the powers that the supreme court would have in like actions and proceedings including, but not limited to, such incidental powers as are necessary to carry into effect all powers expressly conferred herein."

In spite of the fact that there is currently no separate, undecided petition pending before this court, there is an open estate, in the administration phase, which permits this court to issue any order or process relative to the administration of the estate and the affairs of the decedent. (Matter of Lupoli, 275 AD2d 44 [2d Dept. 2000].)

The Civil Practice Law and Rules is applicable in surrogate's court except where other procedure is provided by the act (SCPA §102). There are only four specific provisions in the SCPA relative to examinations under oath. SCPA §1404(4) permits any party in a probate proceeding to examine any or all of the attesting witnesses, the person who prepared the will, the nominated executors and the proponents. SCPA §2211(2) authorizes the examination under oath of a fiduciary either before or after filing objections to an account "as to any matter relating to his or her administration of the estate."^[FN1] SCPA §2103, commonly referred to as a discovery proceeding, authorizes a fiduciary to examine anyone who may be in possession or have knowledge or information regarding property which should be delivered to the estate. SCPA §2104 allows the petitioner in a discovery proceeding to examine a respondent upon the return of citation. There is no other provision in the SCPA which specifically provides for the examination under oath of either a person interested in the estate or a non-party who may have information relevant to the affairs of the decedent.

Steven Melley avers that he provided legal advice and counsel to the decedent over the past four decades regarding family matters and issues affecting the decedent's two closely held corporations. Mr. Melley acknowledges that the decedent's probated will was signed in his presence four days before decedent's demise. Mr. Melley acknowledges precipitating the opening of a new Smith Barney account into which substantial assets were transferred shortly before the decedent's death. After that account was opened, Mr. Melley's wife was designated the "transfer on death" beneficiary. Mr. Melley acknowledges that he witnessed the transfer of forty-nine percent of the two closely held corporations to his wife, but he insists he had no role in the transaction. Mr. Melley acknowledges discussing some of the decedent's pre-mortem decisions with his wife, the executrix of this estate. It could be argued that Mr. Melley is a de facto fiduciary. (Estate of Buxton, 2006 NY Misc. LEXIS 5127 [West. Surr. 2006].) As such, he would be subject to examination pursuant to SCPA §2211(2). Moreover, as a de facto [*4]fiduciary, Mr. Melley would be subject to the provisions of SCPA §2102(1). This statute authorizes a proceeding against a fiduciary to supply information concerning the assets or affairs of an estate relevant to a person with an interest in an estate when the fiduciary has failed to respond after being asked in writing. (See New York Estate Administration, Turano and Radigan, 2009 Edition, §12.02[a].) However, even if none of the discovery provisions in the SCPA are applicable herein, the court may nevertheless look to the CPLR for authority to issue the subject subpoena.

This court has determined that it has jurisdiction to issue a subpoena against the non-party husband of the executrix during the administration of this estate without the necessity of a separate and distinct pending petition. However, the CPLR would in any event authorize the issuance of this non-party subpoena and examination. The CPLR specifically authorizes the issuance of a non-party subpoena and examination pursuant to §3102(c) which provides:

"Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order."

Three of the beneficiaries have indicated that they are considering instituting a proceeding to remove and surcharge the executrix. They may contemplate a reverse discovery proceeding pursuant to SCPA §2105. The decedent's wife has submitted an affidavit on this application in which she avers that the subject of the subpoena, attorney Steven Melley, met with her late husband shortly before his death to sign a form that Mr. Melley brought over to open a new account at Smith Barney and to sign some stock certificates over to the executrix. There are ample grounds to warrant the deposition of Mr. Melley to aid in bringing on an appropriate proceeding as well as to preserve information to which he is privy regarding the affairs of the decedent. This court finds that CPLR §3102(c) authorizes Mr. Melley's non-party examination under oath notwithstanding any other provision of law.

The cases cited by the movant as authority are not applicable. Steven Melley asserts that Matter of Blake, 51 Misc 2d 42 (Surr. Ct., Nassau Cty. 1966) is the "stated law of New York" and precludes a Surrogate from issuing a subpoena "where there is no proceeding." The facts involving Blake, supra are entirely distinguishable from the circumstances presented to this court. In that case, seventeen years had elapsed since the last asset of the estate had been distributed and the information sought in the subpoena was not relevant to any inquiry that the court could properly undertake with regard to either the administration of the estate or the affairs of the decedent. (Piccione, supra.)

The movant's memorandum of law asserts that Surrogate Riordan concurred with the Blake opinion in the Estate of Pavese, supra. Surrogate Riordan makes no mention of Blake in that decision nor does he discuss the issuance of subpoenas. As noted above, however, Surrogate Riordan reaffirms the broad general jurisdiction of the surrogate court to entertain jurisdiction regarding any matter related to the administration of the estate or the affairs of the decedent. (Pavese, supra.) The remaining cases cited by Melley are similarly inapposite.

After initially considering the arguments of counsel at a conference and all of the factual circumstances presented, this court "so ordered" a subpoena directing the non-party deposition of Steven Melley. Additionally, pursuant to CPLR Rule 3111, the subpoena required the production of books, papers and other things in the possession, custody or control of the person [*5]to be examined. The movant argues that the documentary discovery which Steven Melley has been directed to produce is overly broad. CPLR §3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." Each of the items which Mr. Melley has been ordered to produce are material and relevant to the administration of this estate and the affairs of the decedent. As the Court of Appeals has noted, Article 31 of the CPLR must be:

"interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason." (Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968].)

CPLR §3101(a)(4) requires disclosure by any non-party "upon notice stating the circumstances or reasons such disclosure is sought or required." The instant subpoena complies with the requirements of CPLR §3101(a)(4) and was duly served. This court finds that Mr. Melley's unrestricted testimony regarding the affairs of the decedent and the administration of this estate is material and necessary and all of the documents demanded are reasonable and necessary to be used at his examination. There is no basis to quash the subject subpoena or to issue a protective order. Therefore, it is ordered that the motion by Steven Melley is denied in its entirety. It is further ordered that Steven Melley shall appear at the courthouse on September 21, 2010 at 9:30 a.m. for an examination under oath. Adjournments are only granted with leave of the Court. It is further ordered that Mr.

Melley shall produce at that time each of the following:

1.Copies of all electronic mail, correspondence and any other written communications transmitted to or received from the current or prior attorneys for the Estate of Robert S. Kirwood from January 1, 2007 to the present, including but not limited to Peter Graham, Esq. of Kingston, New York.

2.Copies of all electronic mail, correspondence and any other written communications transmitted to or received from Ellen Baker, Esq., a member of the firm of McCabe & Mack in Poughkeepsie, New York, relative to the Estate of Robert S. Kirwood and all wills or drafts of wills prepared for Robert S. Kirwood from January 1, 2007 to the present.

3.Copies of all electronic mail, correspondence and any other written communications transmitted to or received from Gary Guglielmo relative to Morgan Stanley Smith Barney account number 817-51578 in the name of Phoebe K. Melley as personal representative of the Estate of Robert S. Kirwood.

4.Copies of all electronic mail, correspondence and any other written communications transmitted to or received from Morgan Stanley Smith Barney relative to account number 817-51578 under the name of Phoebe K. Melley as personal representative of the Estate of Robert S. Kirwood. [*6]

5.Copies of all electronic mail, correspondence and any other written communications transmitted to or received from Citi Smith Barney or Smith Barney relative to a beneficiary designation on an individual retirement account held in the name of Robert S. Kirwood or Robert Kirwood from January 1, 2007 to the present.

6.Copies of all electronic mail, correspondence and other written communications transmitted to or received from Gary Guglielmo relative to the assets of the Estate of Robert S. Kirwood from January 1, 2007 to the present.

7.Copies of all electronic mail, correspondence or other written communications transmitted to or received from Kirshon and Company, P.C., 311 Mill Street, Poughkeepsie, new York 12601 (or any individual associated with that accounting firm) relative to tax returns, tax filings, and/or the assets of Robert S. Kirwood or the Estate of Robert S. Kirwood from January 1, 2007 to the present.

8.Copies of all electronic mail, correspondence and any other written communications with any of the companies identified on the inventory filed in the proceeding concerning the Estate of Robert S. Kirwood, a copy of which was annexed to the original subpoena.

In addition to the oral arguments of counsel, the Court read

and considered the following documents upon this application:

PAGES NUMBERED

1.Order to Show Cause......................1-3

Affirmation-Tietjen.................1-7

Exhibits............................A-E

Memorandum of Law...................1-8

2.Affirmation in Opposition-Mahon..........1-14

Exhibits............................A-C

3.Supplemental Affirmation-Steven Melley...1-2

Exhibit.............................A

Affidavit-June Kirwood..............1-5

Exhibit.............................A

4.Supplemental Affirmation-Mahon...........1-6

Exhibit.............................A

The foregoing constitutes the decision and order of the Court.

The attorney for the estate beneficiaries asserts that attorney Melley and his counsel have [*7]"perpetrated fraud and misconduct" upon the court by "misappropriating" an attorney-client privileged document which they published to the court and others. That document is a letter to the beneficiaries from their attorney in which he details his litigation strategy and sets forth the specific claims which may be asserted against the executrix and Mr. Melley as well as the precise legal steps to be employed to obtain necessary discovery. Rule 8.3 of the New York Rules of Professional Conduct requires a lawyer who knows that another has committed a violation of Rules of Professional Conduct to report that knowledge to a tribunal or other authority empowered to investigate or act upon such violation. This court is not empowered to conduct independent investigations of attorney misconduct, although it is authorized to consider such misconduct in the context of an application for sanctions pursuant to 22 NYCRR §130-1.1. Such an application has not been presented to this court. The court is constrained to observe that the publication by Mr. Melley and his attorney of what is on its face a confidential communication between attorney Mahon and his clients appears devoid of any legitimate purpose. Its content does not support any of the legal theories posited on this application. Its use, read in the context of the unjustified, vicious written ad hominem attacks against Mr. Mahon made by attorney Melley in correspondence copied to this court suggests that the use of Mahon's letter to his clients, regardless of how it came to be in his possession, was intended by Melley solely to embarrass opposing counsel, conduct which may be found sanctionable pursuant to 22 NYCRR §130-1.1(c)(2).

Dated:Poughkeepsie, New York

August 31, 2010

ENTER

HON. JAMES D. PAGONES, S.C.J.

TO:

082610 decision & order