S T A T E O F N E W Y O R K
________________________________________________________________________
9003
1999-2000 Regular Sessions
I N A S S E M B L Y
July 28, 1999
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Weinstein)
-- read once and referred to the Committee on Judiciary
AN ACT to amend the surrogate`s court procedure act, in relation to
permissible methods of service on non-domiciliaries and creditors
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 103 of the surrogate`s court procedure act is
2 amended by adding two new subdivisions 35-a and 37-a to read as follows:
3 35-A. MAILING BY EXPRESS MAIL. MAILING IN CONFORMITY WITH THE REQUIRE-
4 MENTS OF THE UNITED STATES POSTAL SERVICE RESPECTING EXPRESS MAIL.
5 37-A. MAILING BY SPECIAL MAIL SERVICE. A DIRECTION FOR MAILING OF
6 PROCESS, NOTICE OR OTHER PAPER BY SPECIAL MAIL SERVICE REQUIRES MAILING
7 BY EXPRESS MAIL OR USE OF ANY DESIGNATED DELIVERY SERVICE WITHIN THE
8 MEANING OF S7502(F)(2) OF THE UNITED STATES INTERNAL REVENUE CODE OF
9 1986, AS FROM TIME TO TIME AMENDED.
10 S 2. Subdivisions 35, 36 and 37 of section 103 of the surrogate`s
11 court procedure act, as amended by chapter 503 of the laws of 1980, are
12 amended to read as follows:
13 35. Mailing or mail. A direction to mail or for mailing of process,
14 notice or other paper requires deposit of such process, notice or other
15 paper enclosed in a sealed postpaid envelope, directed to the person to
16 be served or notified, in any post office or other depositary under the
17 exclusive care and custody of the United States {Post Office Department}
18 POSTAL SERVICE.
19 36. Mailing by registered or certified mail. A direction for mailing
20 of process, notice or other paper by registered or certified mail
21 requires mailing in conformity with the requirements of the United
22 States {Post Office Department} POSTAL SERVICE respecting registered or
23 certified mail, as the case may be.
24 37. Mailing by registered or certified mail; return receipt requested.
25 Mailing in conformity with the requirements of the United States {Post
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD11726-01-9
A. 9003 2
1 Office Department} POSTAL SERVICE respecting registered mail with return
2 receipt requested or certified mail with return receipt requested, as
3 the case may be.
4 S 3. Section 307 of the surrogate`s court procedure act, the opening
5 paragraph of subdivision 2, subparagraph (i) of paragraph (a) of subdi-
6 vision 2, paragraph (f) of subdivision 2 and subdivision 5 as amended by
7 chapter 514 of the laws of 1993, paragraph (a) of subdivision 2 as
8 amended by chapter 215 of the laws of 1975, subparagraph (iii) of para-
9 graph (a) of subdivision 2 as amended by chapter 685 of the laws of
10 1967, subparagraph (iv) of paragraph (a) of subdivision 2 as added by
11 chapter 666 of the laws of 1976, paragraph (b) of subdivision 2 as
12 amended by chapter 481 of the laws of 1995, paragraph (d) of subdivision
13 2 as amended by chapter 147 of the laws of 1971, subdivision 3 as
14 amended by chapter 355 of the laws of 1995, subdivision 4 as amended by
15 chapter 12 of the laws of 1983, is amended to read as follows:
16 S 307. Service of process
17 1. Service by personal delivery. Service of the process may be made on
18 any person by personal delivery to him of a copy of the process either
19 within or without the state.
20 2. SERVICE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
21 OR BY SPECIAL MAIL SERVICE, UPON NON-DOMICILIARIES. SERVICE OF THE PROC-
22 ESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
23 REQUESTED, OR BY SPECIAL MAIL SERVICE, UPON NON-DOMICILIARIES, WHETHER
24 OR NOT THEY BE NATURAL PERSONS.
25 3. Service by court order. As an alternative to service under {subdi-
26 vision 1} SUBDIVISIONS 1 AND 2, service may be made in the manner
27 directed by the court; but such service, except as provided by subdivi-
28 sion {5} 6, shall not be ordered upon a domiciliary natural person
29 unless it be shown that, with due diligence, service by personal deliv-
30 ery within the state cannot be effected, or where for good cause shown,
31 personal service within the state would be impracticable. Any proof
32 necessary hereunder may be submitted in the petition or by affidavit.
33 The court may take into account the size of the estate and the remote-
34 ness of kinship of any person to be cited in determining the appropriate
35 due diligence necessary to permit alternate service under this section.
36 The court may direct service by any one or more of the following meth-
37 ods, which shall not, however, be exclusive:
38 (a) service by publication, such as is provided by CPLR 316, subject
39 to 308 and 309, and to such variations of CPLR 316 as the court may
40 provide, except that
41 (i) where persons are to be served by publication, publication in only
42 1 newspaper shall be required, or
43 (ii) where a person is alleged to be within a country with which the
44 United States of America is at war or a place with which the United
45 States of America does not maintain postal communication, the court may
46 direct that a copy of the process shall be mailed on behalf of such
47 person to the officer who may have been appointed to take possession of
48 the property of alien enemies, or
49 (iii) where the person to be served is an absentee or alleged to be
50 deceased, the court may direct that in addition to the foregoing
51 requirements, the process be published in a newspaper published at or
52 near the place where the absentee was last known to be{.} , OR
53 (iv) in an adoption proceeding under article seven of the domestic
54 relations law or in a proceeding under section three hundred eighty-
55 four-b of the social services law, a single publication in only one
56 newspaper shall be sufficient.
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1 (b) {mailing, including air mailing, except in the case of a non-resi-
2 dent where a court order for service of process by mailing shall not be
3 necessary} SERVICE BY MAIL, BY REGISTERED OR CERTIFIED MAIL, RETURN
4 RECEIPT REQUESTED, OR BY ANY MANNER OF SPECIAL MAIL SERVICE, AS THE
5 COURT MAY DIRECT;
6 (c) {registered or certified mail with or without return receipt
7 requested;
8 (d)} substituted service such as is provided by CPLR 308 (2) and (4),
9 within or without the state, subject to 308 and 309, and to such vari-
10 ations of CPLR 308 as the court may provide;
11 {(e)} (D) service within or without the state, by personal delivery to
12 a person duly designated by respondent to receive process in his behalf,
13 or to a person whose relationship, whatever its character, and by blood
14 or otherwise to the respondent, indicates in the circumstances the prob-
15 ability that actual notice will reach the latter through him;
16 {(f)} (E) if the interest of a non-domiciliary alien in the estate is
17 less than $2,500 or his address is unknown or such estate`s gross assets
18 are less than $25,000, by delivery of a copy of the process to a consu-
19 lar official of the alien`s nation.
20 {3} 4. Service upon an infant. Service upon an infant requires that
21 service of process be made upon any one of the following, unless any
22 such one of them is the petitioner, in which case no such service shall
23 be required: his father, his mother, his guardian, any adult person
24 having the care and control of him or with whom he resides, or such
25 person interested in his welfare or education as the court shall by
26 order direct, where it appears to the satisfaction of the court that
27 need for such order exists; and if the infant be of the age of 14 years
28 or over, also upon the infant in person.
29 {4} 5. Service upon an incompetent, conservatee and persons other than
30 natural persons. Unless this act otherwise provides or the court in a
31 given proceeding otherwise directs, CPLR 307, 309 (b), 309 (c), 310,
32 311, 312 and 1025 are applicable to service under the foregoing subdivi-
33 sions of this section.
34 {5} 6. Service upon creditors. Process may be served upon creditors,
35 regardless of the number thereof, by mailing a copy of the process to
36 each of them whether or not they be natural domiciliaries.
37 S 4. Subdivision 3 of section 308 of the surrogate`s court procedure
38 act, as amended by chapter 685 of the laws of 1967, is amended to read
39 as follows:
40 3. Service on consular official. If served upon a consular official
41 pursuant to 307, subdivision {2 (f)} 3 (E), it shall be served at least
42 30 days prior to the return day.
43 S 5. Section 309 of the surrogate`s court procedure act, paragraph (a)
44 of subdivision 2 as amended by chapter 772 of the laws of 1969 and
45 subdivision 3 as added by chapter 355 of the laws of 1995, is amended to
46 read as follows:
47 S 309. When service of process complete
48 1. Service by personal delivery. The service of process is complete
49 immediately upon personal delivery to the respondent when service is so
50 made.
51 2. Service by other means. Unless the court directs otherwise, the
52 service of the process shall be complete when served by:
53 (a) {Mailing} MAILING or by registered or certified mail, with or
54 without return receipt requested, upon the mailing thereof;
55 (B) SPECIAL MAIL SERVICE, UPON RECEIPT OF THE ENVELOPE CONTAINING THE
56 PROCESS BY THE UNITED STATES POSTAL SERVICE IN THE CASE OF EXPRESS MAIL
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1 OR UPON RECEIPT OF THE ENVELOPE CONTAINING THE PROCESS BY THE DESIGNATED
2 DELIVERY SERVICE IN THE CASE OF ANY OTHER SPECIAL MAIL SERVICE;
3 {(b)} (C) substituted service, upon the delivery or affixing and the
4 mailing thereof, whichever is done last;
5 {(c)} (D) personal delivery to a person duly designated by the
6 respondent, or to a person or consular official designated by the court
7 by order to be served in respondent`s behalf, upon such personal deliv-
8 ery;
9 {(d)} (E) publication, on the 28th day after the first publication; or
10 {(e)} (F) any other means, as the court directs.
11 3. Service upon an infant. Where service of process upon an infant
12 pursuant to subdivision {3} 4 of section 307 does not require service
13 upon the infant because the infant is under the age of 14 years and does
14 not require service upon one of the other persons listed therein because
15 such other person is the petitioner, service of process upon such infant
16 shall be deemed complete upon the filing of the petition.
17 S 6. Subdivision 3 of section 1120 of the surrogate`s court procedure
18 act is amended to read as follows:
19 3. Service upon an alien pursuant to 307, subdivision {2, subparagraph
20 (f)} 3, PARAGRAPH (E) may be made without prior service of process
21 personally or otherwise upon the alien.
22 S 7. This act shall take effect on the first day of the calendar month
23 next succeeding the sixtieth day after it shall have become a law.
.SO DOC A 9003 *END* BTXT 1999
Bill A09003
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