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ARTICLE 3 Section 301. Statute of limitations. 302. Pleadings. 303. Verification. 304. Contents of petition. 305. Process, where returnable. 306. Citation. 307. Service of process. 308. Return day of citation. 309. When service of process complete. 310. Who may serve process. 311. Designee for person under disability. 312. Additional parties; supplemental process. 313. Manner of giving notice when not otherwise prescribed. 314. Proof of service of subpoena or process. 315. Joinder and representation of persons interested in estates. 316. Process to attorney general where persons unknown. S 301. Statute of limitations (a) For the purpose of computing the period of limitation under article two of the civil practice law and rules, a proceeding is commenced upon the filing of a petition, provided process is issued and service made upon any respondent within one hundred twenty days after the date of the filing of the petition, except that when process is served by publication, the first publication be made within one hundred twenty days of the filing of the petition. (b) If a proceeding is dismissed for failure to effect proper service, the petitioner may commence a new proceeding, despite the expiration of the statute of limitations after the commencement of the original proceeding, based upon the same instrument, transaction or occurrence or transactions or occurrences within one hundred twenty days of such dismissal provided that service is effected within such one hundred twenty day period. S 302. Pleadings 1. Unless otherwise provided in this act (a) Pleadings shall consist of the petition, answer or objections and account. (b) There shall be no other pleading unless directed by the court. (c) An answer or objection shall be served upon the return of process or at such later date as directed by the court. 2. Statements in a pleading shall be sufficiently particular to give the court and parties notice of the claim, objection or defense and shall contain a demand for the relief sought. 3. Copies of all pleadings, except an account, shall be served upon any party who has appeared in the proceeding and demanded a copy of all papers be served upon him, and upon all parties upon whom the court by order or oral direction entered in the minutes directs that service be made. A party who fails to comply with this requirement may be treated as a party in default. S 303. Verification All pleadings shall be verified in the manner provided by CPLR 3020. S 304. Contents of petition In addition to such other requirements as may be applicable to the petition in a particular proceeding, a petition must substantially set forth: 1. The title of the proceeding, the name and domicile of the person to whose estate or person the proceeding relates and of the petitioner. 2. The facts upon which the jurisdiction of the court depends in the particular proceeding. 3. So far as they can be ascertained with due diligence, the names and addresses of all the persons interested upon whom service of process is required or concerning whom the court is required to have information; and in addition there shall be shown by petition or affidavit in form satisfactory to the court, the following: (a) If any person be an infant, his age, the date of his birth, whether he has a guardian, whether his father, or if he be dead, his mother, is living, his connection with the estate, and the names and addresses of such persons and the person with whom the infant resides. (b) If any person be an incompetent, the name and address of his committee, if any, and of the person or institution having his care and custody and if there be no committee, the name and address of an adult relative or friend having an interest in his welfare. (c) If any person be an incapacitated person, the facts regarding his incapacity and if confined, the name and address of the institution having his care and custody and the name and address of an adult relative or friend having an interest in his welfare, and if a conservatee as designated in section 77.01 of the mental hygiene law, the name and address of his conservator. (d) If any person be unknown or his name or whereabouts be unknown, a general description of such person, showing his connection with the estate and his interest in the proceeding and the facts showing what effort has been made to ascertain his name or whereabouts. (e) If any person be a prisoner confined in this state or elsewhere, the name and address of the institution in which he is confined, and the name and address of an adult relative or friend having an interest in his welfare. (f) If any person be included in a class, and his name be unknown, the names and addresses of those persons of the class who are known, and a general description of all other persons belonging to the class, their connection with the estate, and their interest in the proceeding. 4. That there are no other persons than those mentioned interested in the application or proceeding. 5. A request for the relief sought. S 305. Process, where returnable The process of a surrogate`s court, except where otherwise prescribed by law, must be made returnable before the court from which it was issued. S 306. Citation 1. A citation must substantially set forth: (a) The name and domicile of the person to whose estate or person the proceeding relates and of the petitioner. (b) The names of all persons to be served who have not waived issuance and service of process, or have not appeared. Where the number of persons of any class to be served exceeds 50, it need not specify the name of any person of the class but may be directed to the class by such appropriate designation as the court deems adequate. (c) The time when and the place where the citation is returnable, which time must be not more than 4 months after the date of issuance. (d) The object of the proceeding and the relief sought in the petition. (e) The date when issued. (f) The name, address and telephone number of the petitioner`s attorney. 2. In addition it must substantially set forth: (a) Where the names of some persons to be served comprising a class are unknown, the names of those persons of the class who are known and a general description of all other persons belonging to the class, showing their interest in the proceeding. (b) Where the persons to be served are unknown, a general description of such persons, showing their interest in the proceeding. In either of such cases, where the petitioner is ignorant of the name of a person to be served, he may designate that person in the citation by a fictitious name or so much of his name and identity as is known. 3. The citation shall be in substantially such form as may be provided by the Official Forms appended to this act. 4. The citation shall be attested in the name of the judge of the court and by the seal of the court, the original shall be filed by the clerk and a copy thereof shall be furnished to the petitioner. S 307. Service of process 1. Service by personal delivery. Service of the process may be made on any person by personal delivery to him of a copy of the process either within or without the state. 2. Service by registered or certified mail, return receipt requested, or by special mail service, upon non-domiciliaries. Service of the process may be made by registered or certified mail, return receipt requested, or by special mail service, upon non-domiciliaries, whether or not they be natural persons. 3. Service by court order. As an alternative to service under subdivisions 1 and 2, service may be made in the manner directed by the court; but such service, except as provided by subdivision 6, shall not be ordered upon a domiciliary natural person unless it be shown that, with due diligence, service by personal delivery within the state cannot be effected, or where for good cause shown, personal service within the state would be impracticable. Any proof necessary hereunder may be submitted in the petition or by affidavit. The court may take into account the size of the estate and the remoteness of kinship of any person to be cited in determining the appropriate due diligence necessary to permit alternate service under this section. The court may direct service by any one or more of the following methods, which shall not, however, be exclusive: (a) service by publication, such as is provided by CPLR 316, subject to 308 and 309, and to such variations of CPLR 316 as the court may provide, except that (i) where persons are to be served by publication, publication in only 1 newspaper shall be required, or (ii) where a person is alleged to be within a country with which the United States of America is at war or a place with which the United States of America does not maintain postal communication, the court may direct that a copy of the process shall be mailed on behalf of such person to the officer who may have been appointed to take possession of the property of alien enemies, or (iii) where the person to be served is an absentee or alleged to be deceased, the court may direct that in addition to the foregoing requirements, the process be published in a newspaper published at or near the place where the absentee was last known to be, or (iv) in an adoption proceeding under article seven of the domestic relations law or in a proceeding under section three hundred eighty-four-b of the social services law, a single publication in only one newspaper shall be sufficient. (b) service by mail, by registered or certified mail with or without return receipt requested, or by any manner of special mail service, as the court may direct; (c) substituted service such as is provided by CPLR 308 (2) and (4), within or without the state, subject to 308 and 309, and to such variations of CPLR 308 as the court may provide; (d) service within or without the state, by personal delivery to a person duly designated by respondent to receive process in his behalf, or to a person whose relationship, whatever its character, and by blood or otherwise to the respondent, indicates in the circumstances the probability that actual notice will reach the latter through him; (e) if the interest of a non-domiciliary alien in the estate is less than $2,500 or his address is unknown or such estate`s gross assets are less than $25,000, by delivery of a copy of the process to a consular official of the alien`s nation.
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4. Service upon an infant. Service upon an infant requires that service of process be made upon any one of the following, unless any such one of them is the petitioner, in which case no such service shall be required: his father, his mother, his guardian, any adult person having the care and control of him or with whom he resides, or such person interested in his welfare or education as the court shall by order direct, where it appears to the satisfaction of the court that need for such order exists; and if the infant be of the age of 14 years or over, also upon the infant in person. 5. Service upon an incompetent, conservatee and persons other than natural persons. Unless this act otherwise provides or the court in a given proceeding otherwise directs, CPLR 307, 309 (b), 309 (c), 310, 311, 312 and 1025 are applicable to service under the foregoing subdivisions of this section. 6. Service upon creditors. Process may be served upon creditors, regardless of the number thereof, by mailing a copy of the process to each of them whether or not they be natural domiciliaries. S 308. Return day of citation 1. Based on place of service. Except as otherwise provided in subdivisions 2 and 3, the time of the return of a citation shall be governed by the following paragraphs: (a) The citation shall be served at least the following number of days before the return day: (i) 10 days if the person is served within the state; (ii) 20 days if the person is served without the state but within the United States, the District of Columbia, the Commonwealth of Puerto Rico or the possessions or territories of the United States; and (iii) 30 days in all other cases. (b) The time periods set forth under paragraph (a) of this subdivision shall commence to run from the time that service is complete as provided in 309. 2. Service by publication. If served by publication, the return day shall not be earlier than the day service is completed, as provided in 309. 3. Service on consular official. If served upon a consular official pursuant to 307, subdivision 3 (e), it shall be served at least 30 days prior to the return day. 4. For the purpose of fixing the time within which a process must be served, service upon the clerk of the court, pursuant to designation, is personal service upon the fiduciary within the county where the letters of the fiduciary were issued. S 309. When service of process complete 1. Service by personal delivery. The service of process is complete immediately upon personal delivery to the respondent when service is so made. 2. Service by other means. Unless the court directs otherwise, the service of the process shall be complete when served by: (a) mailing or by registered or certified mail, with or without return receipt requested, upon the mailing thereof; (b) special mail service, upon receipt of the envelope containing the process by the United States Postal Service in the case of express mail or upon receipt of the envelope containing the process by the designated delivery service in the case of any other special mail service; (c) substituted service, upon the delivery or affixing and the mailing thereof, whichever is done last; (d) personal delivery to a person duly designated by the respondent, or to a person or consular official designated by the court by order to be served in respondent`s behalf, upon such personal delivery; (e) publication, on the 28th day after the first publication; or (f) any other means, as the court directs. 3. Service upon an infant. Where service of process upon an infant pursuant to subdivision 4 of section 307 does not require service upon the infant because the infant is under the age of 14 years and does not require service upon one of the other persons listed therein because such other person is the petitioner, service of process upon such infant shall be deemed complete upon the filing of the petition. S 310. Who may serve process 1. Any person over the age of 18 years, although a party, may serve process of the court within the state. 2. Personal service of process without the state may be made in the same manner as within the state by any of the persons authorized by CPLR 313 even though a party to the proceeding. S 311. Designee for person under disability Whenever the person to be served is a person under disability, whether or not a party so requests, the court may in the interest of such person, require by order or direction in the minutes that a copy of the process issued be delivered to a person designated, in the manner and within the time specified. The person so designated shall have with respect to the proceeding while so designated, in behalf of such person, until the return of process and such further time as directed by the court, the same powers and duties as a guardian ad litem and is authorized to admit service of such process. S 312. Additional parties; supplemental process The court may issue a supplemental process at any time and require any party to procure it and cause it to be served in conformity with the provisions of 307 and 308 on any person in any proceeding, so that any person necessary or proper to a final determination therein may be made a party thereto. S 313. Manner of giving notice when not otherwise prescribed Whenever the manner of giving notice is not otherwise prescribed, the court may direct both as to the form of notice and the manner and time of service thereof. Such direction may be indicated on the process or endorsed upon the application with the same force and effect as if incorporated in an order. S 314. Proof of service of subpoena or process Proof of service of a subpoena or process shall be made in the manner and form prescribed by CPLR 306 and 4532, provided, however, that a writing admitting service shall not be sufficient if made by an infant under the age of 16 years or an incompetent. Any person of the age of 16 years or over required to be served may in writing admit service of process. S 315. Joinder and representation of persons interested in estates 1. The provisions of this section shall apply in any proceeding in which all persons interested in the estate are required to be served with process. For the purposes of this section, the term "an interest in the estate" includes both interests in income and interests in principal. 2. Representation of class interests. (a) Where an interest in the estate has been limited as follows, it shall not be necessary to serve process on any other person than as herein provided: (i) In any contingency to the persons who shall compose a certain class upon the happening of a future event, the persons in being who would constitute the class if such event had happened immediately before the commencement of the proceeding. (ii) To a person who is a party to the proceeding and the same interest has been further limited upon the happening of a future event to a class of persons described in terms of their relationship to such party, the party to the proceeding. (iii) To unborn or unascertained persons, none of such persons, but if it appears that there is no person in being or ascertained, having the same interest, the court shall appoint a guardian ad litem to represent or protect the persons who eventually may become entitled to the interest. (b) Where a party to the proceeding has a power of appointment it shall not be necessary to serve the potential appointees and if it is a general power of appointment it shall not be necessary to serve the takers in default of the exercise thereof. 3. Representation of contingent interests. Where an interest in the estate has been limited to a person who is a party to the proceeding and the same interest has been further limited upon the happening of a future event to any other person it shall not be necessary to serve such other person. 4. Representation in probate proceeding. In a proceeding for probate of a testamentary instrument the interests of the respective persons specified in subdivisions 2 (a) (ii) and 3 of this section shall be deemed to be the same interest, whether or not their respective interests are in income or in principal or in both, provided that they are beneficiaries of the same trust or fund, that they have a common interest in proving or disproving the instrument offered for probate and that the person who is a party under subdivision 2 (a) (ii) or the person to whom the interest has been limited under subdivision 3 would not receive greater financial benefit if such instrument were denied probate (in the case where such beneficiaries have a common interest in proving such instrument) or admitted to probate, (in the case where such beneficiaries have a common interest in disproving such instrument). 5. Representation of persons under a disability. If the instrument expressly so provides, where a party to the proceeding has the same interest as a person under a disability, it shall not be necessary to serve the person under a disability. 6. The decree or order entered in any such proceeding shall be binding and conclusive on all persons upon whom service of process is not required. 7. In any proceeding in which service of process upon persons interested in the estate may be dispensed with pursuant to the provisions of this section or section twenty-two hundred ten, in addition to such other requirements as may be applicable to the petition in the particular proceeding, the petition shall (i) set forth in a form satisfactory to the court the information required by subdivision three of section three hundred four with respect to the persons interested in the estate upon whom service of process may be dispensed with, the nature of the interests of such persons and the basis upon which service of process may be dispensed with, and (ii) state whether the fiduciary or any other person has discretion to affect the present or future beneficial enjoyment of the estate and, if so, set forth the discretion possessed and, if exercised, the manner in which it has been exercised. Notwithstanding the foregoing provisions of this section and any provisions of the instrument to the contrary, if the court finds that the representation of a person`s interest is or may be inadequate it may require that he be served. The basis for such finding shall be set forth specifically in the order. 8. Nonjudicial settlements of accounts of fiduciaries. Unless the instrument expressly provides otherwise, an instrument settling an account, executed by all the persons upon whom service of process would be required in a proceeding for the judicial settlement of the account, shall be binding and conclusive on all persons upon whom service of process would not be required to the same extent as that instrument binds the persons who executed it. S 316. Process to attorney general where persons unknown In every case where it appears that there is no distributee or beneficiary or that it is not known whether or not there be such, the process shall be issued to the attorney general of the state.