Weeks v. Pollina (In re Pollina)
| Decision Date | 30 December 2020 |
| Docket Number | 2019–06596,File No. 367/17 |
| Parties | In the MATTER OF John POLLINA, deceased. Allison Weeks, appellant; v. Victoria Pollina, et al., respondents-respondents, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
APPEAL by Allison Weeks in a probate proceeding in which she petitioned, inter alia, to vacate a decree entered February 21, 2018, among other things, admitting to probate the decedent's last will and testament, from an order of the Surrogate's Court (Matthew J. Titone, S.), dated April 23, 2019, and entered in Richmond County. The order denied the petition, inter alia, to vacate the decree.
Borrell & Riso, LLP, Staten Island, NY (Jeffrey F. G. Borrell of counsel), for appellant.
The Law Offices of Soyka & Soyka PLLC (Gyimesi & Wedinger, P.C., Nyack, N.Y. [Laurel A. Wedinger ], of counsel), for respondent-respondent Victoria Pollina.
Bonfiglio & Asterita, LLC, Staten Island, N.Y. (Grace E. Jang of counsel), for respondent-respondent Ellen Pollina.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
The novel issue on this appeal, which has not previously been addressed by this Court and for which little appellate law exists, pertains to the scope of the authority of a Surrogate's Court in determining, nunc pro tunc, whether service of process on an out-of-state party has been effectuated pursuant to the provisions of the Surrogate's Court Procedure Act that govern service of process. For the reasons that follow, we hold that the Surrogate's Court was empowered to deem effective, nunc pro tunc, a substituted method of service on an out-of-state party, Allison Weeks (hereinafter the appellant), and, since diligent efforts to serve the appellant via SPCA 307(2) were unsuccessful, substituted service of a citation on the appellant by regular first-class mail pursuant to SPCA 307(3) was valid under the circumstances of the case. Thus, we affirm the order dated April 23, 2019. The order denied the appellant's petition, inter alia, to vacate a decree entered February 21, 2018 (hereinafter the decree), admitting to probate the decedent's last will and testament (hereinafter the will), on the ground of lack of personal jurisdiction.
In April 2017, Victoria Pollina, a daughter of the decedent and the executor of the decedent's will (hereinafter the Executor), filed a petition in the Surrogate's Court, Richmond County (hereinafter the probate petition), to probate the decedent's will.
According to the probate petition, the decedent died in September 2016, survived by his wife, a son (hereinafter the brother), the Executor, and the appellant, who is the decedent's other daughter. After the Executor filed the petition, the Surrogate's Court issued a citation, inter alia, directing the decedent's wife, the brother, and the appellant to appear for a hearing, scheduled for June 7, 2017, and July 12, 2017, if they had any objections to the probate of the will.
As is relevant to this appeal, according to the Executor, although the appellant was served with the citation directing her to appear on June 7, 2017, and/or July 12, 2017, if she had any objections to the probate of the will, she failed to appear. The Executor contended that attempts to serve the appellant with the citation occurred on May 1, 2017, pursuant to SCPA 307(2), by both United States Postal Service certified mail, return receipt requested, and Federal Express delivery to the appellant's address in Ohio. According to the Executor, the certified mail was returned as unclaimed and, after three unsuccessful delivery attempts requiring signature by Federal Express, the Federal Express envelope also was returned. Thereafter, on June 9, 2017, the Executor caused service of the citation to be made on the appellant by regular first-class mail. That mail was not returned.
On the first return date of the citation, the appellant did not answer or appear at the Surrogate's Court. On the second date, July 12, 2017, when the appellant again failed to appear, the Executor asked the court to deem service of the probate citation on the appellant complete. In an order dated July 14, 2017 (hereinafter the July 2017 order), the court granted the application, finding service of the citation upon the appellant complete and determining, in effect, that it therefore had jurisdiction over the appellant. The court also determined, in effect, that the appellant's absence constituted a lack of any objection to the petition to probate the will.
Thereafter, in February 2018, the Surrogate's Court issued a decree admitting the will, without contest, to probate, as well as issuing letters testamentary.
In April 2017, the appellant retained counsel to represent her in the probate proceeding. That attorney never filed a notice of appearance with the Surrogate's Court.
Thereafter, the appellant retained new counsel and, in July 2018, filed a petition, inter alia, to vacate the decree on the ground of lack of personal jurisdiction. The appellant alleged that she was not served with the citation pursuant to SCPA 307 and, since she was not properly served and had not signed a waiver of process and consent to probate, the Surrogate's Court never obtained personal jurisdiction over her.
The Executor opposed the petition and, among other things, pointed to an affidavit of service of the citation which averred that after several unsuccessful attempts to serve the appellant via certified mail and Federal Express delivery requiring signature, the appellant was served via regular first-class mail. The Executor also pointed out that the Surrogate's Court had deemed service on the appellant complete in the July 2017 order.
In an order dated April 23, 2019 (hereinafter the April 2019 order), the Surrogate's Court denied the petition, inter alia, to vacate the decree. Among other things, the court determined that since the appellant had knowledge of the status of the proceeding and service on her had been "properly effected," the petition to vacate should be denied. This appeal ensued.
The appellant acknowledges that, before the scheduled June 7, 2017, and July 12, 2017, Surrogate's Court dates, she had obtained a copy of the notice of probate and retained counsel to represent her in the proceeding and, at some point, obtained a copy of the will that the Executor sought to have probated. Indeed, emails between the appellant and her prior attorney evidence that the appellant was aware of the July 12, 2017, hearing prior to its date, and that she was also aware of a subsequent court date for the probate proceeding.
A decision to vacate a probate decree is within the discretion of the Surrogate's Court (see Matter of Martorano, 87 A.D.2d 592, 447 N.Y.S.2d 761 ; see also Matter of Sfouggatakis, 23 Misc.3d 1105[A], 2009 N.Y. Slip Op. 50595[U], 2009 WL 929323 [Sur. Ct., Kings County] ; SCPA 209[1] ).
A necessary party to a probate proceeding may obtain vacatur of a decree upon evidence that he or she was not served with process (see Matter of Rank, 14 A.D.2d 644, 218 N.Y.S.2d 275 ; see also Matter of Sfouggatakis, 23 Misc.3d 1105[A], 2009 N.Y. Slip Op. 50595[U] ). SCPA 307(2), which typically governs service of process over individuals such as the appellant who are domiciled outside of New York and are necessary parties to a probate proceeding in New York, sets forth that service should occur by registered or certified mail, return receipt requested, or by special mail service. Federal Express is considered a special mail service (see SCPA 103[37–a] ).
Nonetheless, although SCPA 307(2) dictates that those methods of service should be undertaken for parties such as the appellant, when diligent efforts to effectuate such service pursuant to SCPA 307(2) are unsuccessful, for example, when service on a party is being evaded or is not practical or cannot be effectuated, the Surrogate's Court is well within its authority to authorize a substituted method of service pursuant to SCPA 307(3), CPLR 308 for guidance (see e.g. Matter of Sucich, 47 Misc.3d 1209[A], 2015 N.Y. Slip Op. 50523[U], 2015 WL 1648785 [Sur. Ct., Dutchess County] ; Matter of Broxmeyer, 108 Misc.2d 809, 809–810, 438 N.Y.S.2d 984 [Sur. Ct., Nassau County] ; Matter of Marko, 56 Misc.2d 138, 138–139, 287 N.Y.S.2d 776 ). Specifically, SCPA 307(3) authorizes substituted service pursuant to court order (see e.g. Matter of Skolnick, 108 A.D.3d 720, 722, 970 N.Y.S.2d 62 ; see also Matter of Sucich, 47 Misc.3d 1209[A], 2015 N.Y. Slip Op. 50523[U] ).
Thus, here, although the Surrogate's Court could not find that service of the citation on the appellant was effectuated pursuant to SCPA 307(2) because the service by both certified mail, return receipt requested, and Federal Express were unsuccessful (see e.g. Matter of Mackey, 91 Misc.2d 736, 737–738, 398 N.Y.S.2d 605 [Sur. Ct., Dutchess County] ), it was able to authorize another method of service (see Matter of Sucich, 47 Misc.3d 1209[A], 2015 N.Y. Slip Op. 50523[U] ; Matter of Broxmeyer, 108 Misc.2d at 810, 438 N.Y.S.2d 984 ). However, the Executor undertook to serve the appellant by regular first-class mail before seeking the approval of the court to do so. As a result, at issue is whether the court is empowered to authorize substituted service, nunc pro tunc, when a party undertakes such service before seeking an order allowing it to do so. For the reasons herein, we find that the court is empowered to authorize substituted service nunc pro tunc.
The purposes of efficiency and economy dictate that, in the ordinary course, a party in a proceeding before the Surrogate's Court should apply to that court for an order permitting substituted service pursuant to SCPA 307(3)(b) prior to...
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