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Section 501. Transfer, consolidation and severance. 502. Trial by jury; waiver or withdrawal. 503. Proceedings upon jury trial. 504. Jurors. 505. Trial by the court. 506. Reference to hear and report. 507. Testimony of witness. 508. Before whom testimony may be taken; issuance of commission. 509. Effect of uncontroverted allegations of fact. 510. Pretrial conference. S 501. Transfer, consolidation and severance 1. The court may upon motion by any party: (a) Transfer for trial to the surrogate`s court having jurisdiction over an estate any action or proceeding pending in any court other than the supreme court which affects or relates to the administration of an estate and transfer any action or proceeding other than one which has been previously transferred to it or which affects or relates to the administration of an estate, to any other court, except the supreme court, having jurisdiction of the subject matter in any other judicial district or county provided such other court has jurisdiction over the classes of persons named as parties. (b) Consent to receive for trial any action pending in the supreme court which affects or relates to the administration of a decedent`s estate. 2. Consolidation and severance (a) Consolidation. When proceedings pending before the court, including actions transferred under subdivision 1, involve a common question of law or fact, the court upon the motion of any party or on its own initiative may order a joint trial of any or all of the matters in issue or order that the proceedings be consolidated or make such other orders concerning proceedings therein as may tend to avoid unnecessary cost or delay. (b) Severance and separate trials. In furtherance of convenience or to avoid prejudice, the court upon the motion of any party or on its own initiative may order a severance of any or all of the matters in issue or may order a separate trial of any one or all of the matters in issue and upon determination thereof render an appropriate intermediate or final order. S 502. Trial by jury; waiver or withdrawal 1. Right to jury trial. A party is entitled to trial by jury, if duly demanded, in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right of trial by jury, in any proceeding for the probate of a will in which a controverted question of fact arises, and in any proceeding commenced after the death of the creator of a revocable lifetime trust to contest the validity of such trust in which a controverted question of fact arises. 2. Demand for jury. (a) Cases initiated in the court. Each respondent demanding a jury trial must do so in his answer or objections. A petitioner who desires a jury trial must, without regard to whether or not an answering or objecting respondent has made such demand, serve and file in his own behalf a demand for jury trial within 6 days after the service upon him of an answer or objections. (b) Cases transferred to the court. In an action transferred to the court under 501, subdivision 1, a party who has duly demanded a trial by jury in the court from which the case is transferred shall be deemed to have duly demanded it in this court. If the party moving such transfer has not so demanded a trial by jury and shall not have waived such right or his time to make such demand has not expired he shall do so in his moving papers. Any other party to the transferred action who has not demanded a trial by jury in the court from which the case is transferred and shall not have waived such right or his time to make such demand has not expired must serve and file with this court a demand for a trial by jury within 10 days after the service upon him of a copy of the order of transfer with notice of entry thereof. 3. Jury fee. The jury fee shall be paid by each party who demands a trial by jury. 4. Order framing issues. After joinder of issue an order framing the issues to be tried shall be submitted on notice by any party. The court may direct any party to submit an order framing issues. The court shall make an appropriate order, a copy of which shall be served by the party submitting it on all parties who have appeared and pleaded. 5. Waiver or withdrawal. (a) Waiver. A party waives the right to a trial by jury by: (i) failing to make a demand under subdivision 2; (ii) failing to appear at the trial; (iii) filing a waiver signed by him or his attorney with the clerk of the court; or (iv) orally waiving a trial by jury in open court or at any pre-trial conference, if entered in the minutes taken at the time. (b) Withdrawal. A party may withdraw a demand for a trial by jury without the consent of the other parties. 6. Advisory jury. The court may submit any issue of fact to an advisory jury as provided in the CPLR. Upon the motion of any party or on its own initiative the court may confirm or reject in whole or in part the verdict of an advisory jury; may make new findings with or without taking additional testimony and may order a new trial. The motion shall be made within 15 days after the verdict. Where no issues remain to be tried the court shall file its decision in writing. 7. The court may direct that any jury trial be had before it or at a trial term of the supreme court to be held within the county or if there be a county court in such county, in that court. The verdict if not set aside by the court before which the question is tried, shall be certified to the surrogate`s court by the clerk of the court in which the trial took place and shall be conclusive except upon appeal. S 503. Proceedings upon jury trial 1. At any time during trial the court upon motion of any party or on its own initiative may direct judgment on one or more issues whenever it determines as a matter of law that the evidence is insufficient to create an issue of fact for a jury on such issue. Whenever judgment is so directed the issue shall thereupon be deemed withdrawn from the jury and it shall render no verdict or finding thereon. The direction of the court shall be entered in the minutes. 2. On consent of the parties any issue may be likewise withdrawn from a jury and judgment directed thereon. 3. The verdict and any order or decision of the court shall be entered in the minutes and if the trial was not held in the surrogate`s court the verdict, order or decision shall be certified by the clerk of the court to the surrogate`s court, whereupon that court shall enter a final decree accordingly. S 504. Jurors Jurors shall be selected from any panel in attendance at any trial term of the supreme court or county court of the county.
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S 505. Trial by the court 1. The court shall decide all issues not required to be tried by a jury. 2. Upon a trial by the court without a jury: (a) the court shall render a decision directing the order or decree to be entered which, except for such direction, need not contain either the facts found or the conclusions of law. (b) the decision may be rendered orally and entered in the minutes by the court reporter and transcribed and filed, or may be made and filed by the court in writing. S 506. Reference to hear and report 1. In any proceeding other than one instituted for probate of a will or where a constitutional right to trial by jury exists and is demanded, the court may appoint a referee to report to the court upon the facts or upon a specific question of fact or upon the law and the facts. The report of the referee shall be filed and contain the facts found and the conclusions of law. No exceptions need be filed to the report. 2. No referee to examine an account rendered or to report questions arising upon the settlement of the account shall be appointed where the estate does not exceed $1,000 in value or in any case where the item or items in such account to which objections have been made do not aggregate more than $200, except that in any such proceeding the court may appoint a referee to serve without compensation. 3. A referee shall have the powers granted by CPLR 4201 and shall conduct the reference in the same manner as a court trying an issue without a jury. The referee shall file his report within 30 days after the matter has been finally submitted. Unless otherwise stipulated a transcript of the testimony together with the exhibits or copies thereof shall be filed with the report. 4. Upon the motion of any party or on its own initiative the court may confirm or reject in whole or in part the report of the referee; may make new findings with or without taking additional testimony or may order a new reference. Any party to the proceeding may serve notice of the filing of the report. Unless the motion be made within 60 days after service of notice of the filing of the report, it shall be deemed confirmed. Where no issues remain to be tried the court shall file its decision in writing. 5. The compensation and expenses of such a referee shall be fixed and allowed as provided by CPLR 8003 (a) and 4321, except as limited by subdivision 2. 6. (a) Upon the consent of the attorneys for all parties who have appeared at the hearing, the court may designate the chief clerk, one of the other clerks, a court attorney or any assistant to take the testimony in any proceeding other than one where a right to trial by jury exists and to report to the court upon the facts or upon a specific question of fact or upon the law and the facts. The report shall be in writing and shall be filed. It shall state the facts deemed to be essential, but need not make findings of fact. No exceptions need be filed to the report. The person so designated must be an attorney at law and shall have all the powers granted by CPLR 4201 and shall conduct the reference in the same manner as a court trying an issue without a jury. A copy of the report shall be sent to the attorney for each party who appeared at the hearing together with a notice that the report shall be deemed confirmed as of course unless within ten days from the date of mailing the report any party shall file with the court, a notice of motion to modify or overrule the report. Upon motion of any party or upon its own initiative the court may confirm, modify or reject the report in whole or in part, may make new findings with or without taking additional testimony or may order a new hearing. (b) It shall not be necessary to file a transcript of the testimony with such report but on a motion to modify or overrule the report any party may file a copy of the transcript. (c) Upon the consent of the attorneys for all parties who have appeared at the hearing, the necessity of the preparation of the report by the person so designated may be waived and the matter decided by the court based upon the transcript of the hearing. In such event the expense of the transcript shall be a charge against the estate, or where appropriate, as otherwise directed by the court. (d) The person so designated as referee shall not receive any compensation from the estate or from any party for his services and shall be reimbursed for his necessary expenses only as provided in 2609 (3) (a). S 507. Testimony of witness 1. The testimony of a witness may be taken at any place the court directs. The party applying therefor shall give such notice of the time and place of taking the examination as the court prescribes and shall pay the court its actual and necessary expenses incurred in taking testimony at a place other than the court. 2. In any uncontested proceeding where an attesting or a material witness who is in another county of the state cannot conveniently attend before the court it may make an order directing that the witness be examined in the surrogate`s court of another county and specifying the nature and manner of the examination. A copy of the order must be transmitted to the surrogate so designated, together with the original will or court certified reproduction thereof, where the testimony relates to the execution of a will. The examination may be taken by one of the clerks of the court. After the examination is reduced to writing and subscribed by the witness or otherwise duly authenticated, it, together with a statement of the proceeding upon the execution of the order, must be certified by the surrogate or clerk taking the examination, attested by the seal of his court and returned with the original will or court certified reproduction thereof, if any, to the court which directed the examination, which must file the same in its office. S 508. Before whom testimony may be taken; issuance of commission. 1. Testimony may be taken within or without the state or in a foreign country by an attorney in addition to the persons enumerated in CPLR 3113 (a). 2. The court may issue a commission to a person authorized to take a commission under CPLR 3113 or to an attorney of this state or of the jurisdiction in which the commission is to be taken. S 509. Effect of uncontroverted allegations of fact Except as otherwise prescribed by law, a petition, or account filed in a proceeding, unless denied by answer, objection or other proof, is due proof of the facts therein stated. S 510. Pretrial conference At any time after issue has been joined, the court, in its discretion, may require the attendance of all parties and counsel at one or more pretrial conferences. The conferences shall be held for the purpose of settlement negotiation, or, in the alternative, to narrow the issues for trial, seek agreement among the parties and counsel as to the admissibility of evidence, seek agreement as to the order in which witnesses will be called, and otherwise provide for the speedy and orderly conduct of trial. Absent objection placed on the record, during a pretrial conference the court may confer with any party or parties and their counsel outside of the presence of any other party or parties and their respective counsel.