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 1858.2 - Rules applicable to proceedings

Current through Register
						Vol. 46, No. 28, July 10, 2024
Process Calendar
The Process Calendar is called every Thursday. When a
						  holiday falls on a Thursday, the calendar is called on Wednesday of the same
						  week.
Service of Process and Proof of
						  Service
1. Motions must be made
						returnable every week on the day on which the process calendar is called.
						Counsel must 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
						served on all respondents. Oral argument is required on all motions.
2. Where 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
1. Any pleading, or paper
						supplemental thereto (
e.g.,
waiver and consent, renunciation,
						affidavit, etc.) that is dated more than six months prior to date of filing is
						considered stale and will not be accepted for filing by the court.
2. No party in interest in a proceeding can
						act as a notary for any papers filed in the proceeding.
Trials
The calendar for the trial of contested proceedings is
						  called every Monday. When a holiday falls on a Monday, the calendar is called
						  on Tuesday of the same week.
Self-Represented Petitioners
All self-represented petitioners for letters
						  testamentary must be personally interviewed by the Chief Clerk, Deputy Chief
						  Clerk, or one of their designees, prior to filing their petition with the
						  court.
Probate Department
1. Personal appearance and examination under
						oath by the clerk must be had of any witness to a will offered for probate that
						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.
						When a probate proceeding is marked for decree subject to examination of
						subscribing witnesses, such examination shall be conducted on the date set on
						the return date of process or, if no date has been set, then within 90 days of
						the return date, or else objections will be deemed waived. The time provided
						for by statute for filing objections after completion of the examination of
						subscribing witnesses may be extended by stipulation of counsel filed with the
						court and so ordered.
3. A petition
						requesting leave to extend preliminary letters beyond 180 days must be
						accompanied by a cash flow statement detailing the assets marshaled and claims
						paid by the petitioner. Any discrepancy between the value of estate assets set
						forth in the cash flow statement and the original petition for probate requires
						the filing of an affidavit explaining the discrepancy. If leave for extension
						is granted, preliminary letters will be extended for an additional 180 days.
Administration Department
1. In order to dispense with the necessity of
						a bond pursuant to SCPA 805, the petitioner for letters of administration must
						not only submit the unanimous, acknowledged consent of all distributees, but
						also a copy of a
paid
funeral bill.
2. In a proceeding under SCPA Article 13, the
						court may require submission of a third party affidavit of kinship if it is
						alleged that the petitioner is the sole distributee of the decedent.
3. The certificate of letters of voluntary
						administration issued pursuant to SCPA Article 13 will specifically identify
						the alleged assets of an estate on its face,
e.g.,
bank name
						and account number, and will limit the right of the voluntary administrator to
						marshal only such identified assets.
Exempt Property for Benefit of Family - EPTL
						  5-3.1
Certificates may be issued to a spouse, or children
						  under the age of 21 years of the decedent, identifying exempt property set
						  forth in EPTL 5-3.1, when necessary.
Accounting Department
1. A copy of the account must be served with
						the citation on all parties interested in the account. Proof of service must
						reflect service of both citation and account, as must any waiver and consent
						signed by a party. Expenses for photocopies and mailings of the account and
						citation shall be allowed as a legal disbursement.
2. General language approving the account, or
						compromise and account, shall not be permitted in a waiver and consent signed
						by a party. A waiver and consent by a residuary legatee or distributee is not
						acceptable unless it specifically consents to every prayer for relief set forth
						in the petition and citation. All other interested parties need only
						specifically consent to relief which affects their interest.
3. Where real property is sold by a
						fiduciary, only the sum equal to the net proceeds of sale is to be included in
						Schedule A of the account, and a copy of the closing statement is to be
						submitted with the account. All expenses incurred in connection with the sale
						(
e.g.,
RPT tax, broker's commissions, attorney's fees, etc.)
						and the satisfaction of outstanding liens (
e.g.,
mortgage,
						Parking Violation Bureau judgments, etc.), must be deducted from the gross sale
						price prior to entry in Schedule A.
4. A petition for permission to sell real
						property, pursuant to SCPA Article 19, must be accompanied by a copy of the
						contract of sale and a current appraisal of the subject property.
5. A petition to fix and determine attorney's
						fees, pursuant to SCPA 2110, must allege the specific dollar amount of the fee
						requested and must be accompanied by an affidavit of legal services.
Compromise and Account
1. Jurisdiction over either the defendant or
						the defendant's insurance carrier must be obtained in any proceeding to
						compromise a cause of action for personal injury or wrongful death. This
						requirement is satisfied by either:
(a) a
						letter on insurance company letterhead advising of the settlement of a cause of
						action for a specific dollar sum on behalf of their insured
						defendant;
(b) an original signed
						stipulation of settlement or court-certified copy of stipulation placed on the
						record;
(c) a waiver and consent
						signed and acknowledged by an insurance company officer who has the authority
						to execute; or
(d) service of
						citation on the insurance carrier and the named defendant in the underlying
						action.