Relates to service by citation

BILL NUMBER:A7909A

Title of bill

An act to amend the surrogate's court procedure act, in relation to service of a citation

Purpose

This bill seeks to avoid unnecessary hardship on the part of a Respondent in a Surrogate's Court proceeding who is served with a cita- tion or other process, but not with the petition, affidavits, exhibits and other instruments forming the basis for the court to issue the cita- tion, order to show cause, or other process.

Summary of provisions

This bill amends section 306 of the Surrogate's Court Procedure Act by adding a new subdivision ,S requiring that a,copy of the petition, affidavits, affirmations and exhibits upon which proc- ess was issued must be served with the citation, or other process to obtain jurisdiction of 'a party in a proceeding brought in the Surro- gate's Court, except where service is by publication and except in a proceeding for a voluntary accounting.

Existing law

Process in a proceeding brought in the Surrogate's Court consists of the citation, order to show cause, subpoena, and any other mandate of the Surrogate's Court by which jurisdiction is obtained by a party. (SCPA 103,subdivision 43. See also SCPA sections 305, 306).

Justification

Proceedings in. the Surrogate's Court are typically commenced by service of a citation, frequently unaccompanied by the petition and supporting papers which form the basis for issuing the citation. The SCPA does not require service-of more than a citation or order to show cause to constitute process, without any requirement to include the petition and other supporting papers which form the basis for the court to issue process.

This creates a hardship and additional expense on the part of the Respondent and his or her attorney, who must travel to the courthouse to copy the petition, exhibits, etc. in order to prepare an answer. As an added inconvenience, frequently there are not adequate copying facili- ties at the courthouse.

All of this is in contrast to the procedure for special proceedings under the CPLR, which are akin to proceedings in the Surrogate's Court. For example, CPLR 403(b) provides for service of a notice of petition "together with the petition, and affidavits specified in the notice...". An Order to Show Cause may be served in lieu of a notice of petition (CPLR 403, subdivision (d)).

Legislative history

None

Fiscal implications

There are no fiscal implications.

EFFECTIVE DATE:! This bill takes effect immediately.