New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle B - Courts › Chapter VII - Surrogate's Court › Subchapter B - Second Judicial Department › Article 1 - Local Rules › Part 1858 - Queens County › Section 1858.1 - General rules

Current through Register Vol. 46, No. 28, July
						10, 2024
Service of Process and Proof of
						  Service
1. Pursuant to Uniform
						Rule 207.7(c) all proof of service of process, notices of motion, and orders to
						show cause, must be filed two days prior to the return date.
2. Motions are to be made returnable only
						every other week rather than every week in which the process calendar is
						called. It is considered the responsibility of counsel to check with the clerk
						of the court as to the appropriate date to be entered for return of notice of
						motion prior to serving and filing. Any motion noticed with an incorrect date
						will be returned to counsel and not placed on the calendar until the correct
						date is inserted on the notice of motion and reserved on all
						respondents.
3. Where, by court
						order, service of process is permitted by certified or registered mail there is
						no need to file a signed return receipt unless directed by the court. The
						affidavit of service, however, must include a statement that the mailing was
						not returned to the sender as undeliverable.
Pleadings and Papers Filed With
						  Court
4. Any pleading
						or paper supplemental thereto;
e.g.,
waiver and consent,
						renunciation, affidavit etc., which is dated more than six months prior to date
						of filing, is considered stale and not accepted for filing by the
						court.
5. Where it appears that a
						pleading must be amended, amendment may be accomplished by the affidavit of the
						petitioner or petitioner's attorney unless directed otherwise by the clerk of
						the court.
6. No party in interest
						in a proceeding can act as notary for any papers filed in the proceeding.
Status of the Parties; Proof of
						  Kinship
7. Pursuant
						to 207.17(d) Uniform Rules the court will not accept an affidavit of kinship
						signed by the spouse or issue of a petitioner claiming to be the sole statutory
						distributee.
8. Pursuant to 207.50
						Uniform Rules the court will require service of process on an alleged divorced
						spouse unless, either a certified copy of the divorce decree or other
						acceptable proof of divorce is filed with the petition. Also the court may
						require that where the sole statutory distributee is an alleged surviving
						spouse, a copy of the marriage certificate be filed with the petition.
Trials
9. The calendar for the trial of contested
						proceedings is called on the first Monday of every month. A note of issue and
						statement of readiness in compliance with Uniform Rules 207.29 and statement of
						issues in compliance with Rule 207.30, must be timely served and filed 10 days
						prior to the Trial Call Calendar date requested, otherwise the proceeding will
						not be placed on the Call Calendar. Once a day certain and time for trial is
						fixed by the Surrogate, no adjournments will be granted barring extraordinary
						circumstances. In this respect actual engagement of counsel is considered
						insufficient grounds for an adjournment. Prior to the date fixed for trial, all
						trial counsel will be directed to meet with a member of the law department so
						that exhibits to be used on trial can be marked for identification and
						witnesses identified.
Miscellaneous
10. All
pro se
petitioners
						for either letters of administration or letters testamentary must be personally
						interviewed by the Chief Clerk, Deputy Chief Clerk or a member of the law
						department prior to filing their petition with the court.
Probate Department
1. The court requires the personal appearance
						and examination under oath by the clerk of any witness to a will offered for
						probate which was executed within 90 days of the date of the decedent's death.
						Where all the parties in interest in the proceeding are adult and competent and
						sign an acknowledged waiver, and consent to entry of the will to probate, the
						court will dispense with this requirement.
2. Any probate proceeding marked for decree
						subject to examination or subscribing witnesses requires that such examination
						be conducted within 90 days of the return date, or else objections will be
						deemed waived. The time for filing objections after completion of the
						examination of subscribing witnesses may be extended by stipulation or counsel.
						A decision and order encompassing this directive is forwarded to counsel after
						the return date (Exhibit A).
Attorney Fiduciary
3.
(a)
						Where the petition for probate requests that letters testamentary issue to a
						person who is also an attorney, not related by blood or affinity with the
						decedent, the court requires that the attorney fiduciary submit an affidavit
						explaining his relationship with the decedent and the circumstances surrounding
						his nomination as executor. The attorney/fiduciary is provided with a printed
						notice detailing the information which is to be set forth in the subject
						affidavit (Exhibit B). After the required affidavit is filed, it is submitted
						to the Surrogate, who shall determine whether a hearing is necessary on the
						issue of the attorney/fiduciary' s qualifications and the facts surrounding his
						appointment.
(b) If the
						attorney/fiduciary is found to be qualified to act as executor, he or she must
						comply with Uniform Rule 207.60.
Preliminary Letters