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Court Discusses Powers of Surrogate Court


A Probate Lawyer said that sources revealed that this case deals with a slip and fall accident. Defense Attorneys have now moved this court to dismiss the within action with prejudice on the basis that their client has been deceased fro sometime and as such has no standing to be a party to litigation, could not have been properly served, and did not own the said premises on the date of the injury. In addition, the defense asserts that even if a proper defendant could now be found and interposed, said action would be time barred inasmuch as the applicable three year statute of limitations has expired. The complainant asserts that defense “motion should be denied due to the fact that their client is still listed as the owner of record and there is nothing in the record which would have put complainant on notice of the fact the the owner had died or that title had changed.” The complainant has also submitted a cross motion for leave, in the interest of justice, to amend her complaint to add the representatives of the owner’s estate as a party defendant. The complainant notes that although this action was commenced by the filing of a summons and complaint, to which the defense served an answer and a demand for a bill of particulars and for the complainant’s deposition, it wasn’t until after the expiration of the applicable statute of limitations that defense counsel sent her a copy of the owner’s death certificate. Complainant further argues that her cross motion should be granted in the interest of justice inasmuch as the defense cannot claim surprise or prejudice thereby.

A New York Estate Lawyer said the Court of Appeals, in The Matter of Stern, expressly found that “The New York State Constitution confers jurisdiction on the Surrogate’s Court over all actions and proceedings relating to the affairs of decedents, probate of wills, estate administration 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. The codification of the Surrogate’s Court Procedure Act in 1966 was intended to implement the powers of that court `to permit all matters relating to affairs of decedents to be determined in the court settling the estate’. The Surrogate’s Court Procedure Act specifies that the Surrogate’s Court’s general jurisdiction encompasses `all the jurisdiction conferred upon it by the constitution 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.

According to EPTL section 11-3.2(a)(1), “No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent.” “Subdivision (a) of CPLR 1015 provides that “If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties” and the action could therefore be continued against the personal representative of the decedent. The Appellate Division added, however, that “where the personal representative is not yet a party to the action, service of the notice of motion of substitution must be made in the manner prescribed for service of a summons under article three of the CPLR. “The procedure for revival of an action by substitution of the personal representative, far from being a mere technical formality, is rather, the recognized means by which a court obtains jurisdiction over the personal representative”, and it is therefore “necessary that the representative be served with process and accorded ‘all the procedural safeguards required by due process of law’ before the court may enter a binding judgment against him. Thus, service of the papers in the manner prescribed for motion papers generally will not suffice.”

CPLR 306-b provides that service of a summons and complaint shall be made within one-hundred and twenty days after the commencement of the action; however, a court can extend this period for good cause showing or in the interest of justice. In the matter of Murphy v. Hoppenstein, the Appellate Division, 1st Department held that “extensions should be liberally granted whenever the plaintiffs have been reasonably diligent in attempted service regardless of the expiration of the Statute of Limitations after filing and before service.” The court went on to reject the argument that an extension of the CPLR 306-b 120 day period to make service of the summons and complaint may be granted only if no service, as opposed to improper service, is made within the 120 day period.

A Brooklyn Probate Lawyer said in Jervis v. Teachers Insurance and Annuity Association, the 1st Department found that there must be a demonstration of “good cause” to explain a failure to serve a summons and complaint to activate the provisions of CPLR 306-b, and where there has been an unacceptably protracted delay measured from the expiration of the 120 day period, the statute could not be extended in the interest of justice. Likewise, the Appellate Division, 2nd Department, in Leader v. Maroney, held that CPLR 306-b requires that a summons and complaint with notice be served upon a defendant within 120 days after the commencement of the action, and authorizes a court to extend the 120 day service period for “good cause showing” or “in the interest of justice.” The Court specifically found that “in keeping with the legislative intent to liberally grant extensions in cases where, as here, the statute of limitations has expired after filing, and in view of the fact that the plaintiff has a potential meritorious cause of action and the defendants made no showing of prejudice, we find that the Supreme Court properly exercised its discretion in granting the complainant’s motion for an extension of time to effect service.”

Bronx Probate Lawyer it is indisputable that the named owner, who had died, remains the title owner of record to the subject premises. Nevertheless, the afore-mentioned facts ill afford any compelling rationale as to why the plaintiff made no attempt to amend the summons and complaint during the remaining CPLR 306-b period or any other effort which could be discerned as a good faith basis to extend the 120 day rule to effectuate service. However, the fact that the defendant’s surviving spouse was the one served with a copy of the summons and complaint argues against any potential claim of surprise or of prejudice to the owner’s estate, especially since under SCPA 1001(1)( a ), she has first preference to serve as his administratrix, and under EPTL 4-1.1 she would be entitled to all or over one-half of the intestate share of his estate. In addition, it bears to note that the defendant has not disputed a meritorious claim of injury on the complainant’s part. Accordingly, this Court finds that under all of the circumstances of this case, the complainant should, in the interest of justice, be permitted to amend his summons and complaint to substitute the Estate of the owner as defendant, and be afforded thirty days to effectuate service once a personal representative has been appointed for the estate. This constitutes the decision and order of the Court.

With Stephen Bilkis & Associates, whose offices are located throughout New York, you can secure the services of its Kings County Estate Administration Attorneys, or its New York Probate Lawyers, to defend you and assist you in matters of will contest, estate litigation, and estate settlement procedures.

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