Court Rules

Rules of the Surrogate’s Court - Richmond County Part 1851

1851.1 Retainer Agreements

(A) Whenever an attorney is retained by a client to render services in connection with any action, claim or proceeding in the Surrogate’s Court, the attorney shall be required to enter into a written retainer with the client stating, inter alia, the services to be performed, the compensation to be paid for such services and the mode of payment therefor. Attorneys shall include a copy of a retainer agreement with the initial filing of any court papers.

(B) Failure to enter into and file such retainer agreement will be considered by the court on any application for legal fees and may constitute a ground for disallowance of fees.

1851.2 Appearances

(A) All attorneys, other than those whose representation has been noted by a pleading, must file a notice of appearance and authorization to appear.

(B) Substitutions of attorney. No subsequent attorney representing a party will be permitted to appear unless there is filed with the clerk a consent the change signed by the retiring attorney and signed and acknowledged by the party.

1851.3 Pleadings and Papers Filed With Court

(A) The Court will not accept submissions via facsimile transmission.

(B) Any pleading or paper supplemental thereto, e.g. waiver and consent, renunciation, affidavit etc., that is dated more than six months prior to the date of filing, is considered stale and shall not be accepted for filing by the Court.

(C) No party in interest in a proceeding may act as notary for any papers filed in the proceeding.

(D) Any document submitted for filing in this court that is not an Official Surrogate’s Court form, but for which the Chief Administrative Judge has prescribed a form, shall be on standard eight and one-half-inch by eleven-inch paper, the text must be legible, the standard typeline shall be of 10 to 12-point characters (other than instructions), the margins shall be no less than one-half-inch, and the form shall have attached thereto the following certification for either the attorney or the party who prepared the document:

“The undersigned hereby certifies that the attached document submitted for filing is the same as the prescribed form, and the substantive text of that prescribed form has not been altered.”

1851.4 Motions

(A) All return dates for motions will be fixed by the clerk. Any motion submitted to the Court with a return date not selected by the clerk shall be rejected.

(B) Appearance is required by counsel for all parties on the return date of the motion and all motions are to be orally argued, unless the written consent of all counsel to have the motion submitted on the papers without their appearance is received by the Court not later than the close of business on the Friday immediately preceding the return date.

1851.5 Calendar

(A) The calendar will be called promptly at 9:30 A.M. All attorneys must appear in person.

(B) No adjournment shall be granted without prior approval of the Court. Prior approval of the court must be sought, in writing, no later than two full business days prior to the scheduled court date. A request for an adjournment must be made directly to the Law Department and not the Clerk’s Office. A party seeking an adjournment must attempt to obtain the consent of all parties prior to seeking approval of the Court, and must indicate to the Court at the time approval is sought whether consent has or has not been obtained.

(C) At every pre-trial conference, all parties must appear.

1851.6 Pre-trial Discovery

(A) Upon completion of the SCPA 1404 examination of attesting witnesses, counsel shall notify the Law Department before leaving the Court, and counsel will be advised by what date objections must be filed. If no objections are filed and properly served by the close of business on that date, the proponent shall so notify the Court, in writing, and the proceeding will then be referred to the Clerk’s Office as an uncontested probate.

(B) Upon the filing of objections the proponent shall submit to the Clerk’s Office for issuance a Citation pursuant to SCPA 1411 for service upon all those persons entitled thereto. Should a Citation not be required, the proponent shall submit to the Court an affirmation so indicating, and request that the matter be restored to the calendar for further disposition.

(C) At the next appearance, a detailed schedule for an exchange of Bills of Particulars and for all pretrial discovery shall be set forth in a pre-trial stipulation to be executed by the attorneys in attendance and “so ordered’ by the Court. Immediately upon completion of discovery, a Note of Issue with a Certificate of Readiness and an affidavit of service shall be filed with the Court by any party. Thereafter, the Court will schedule a pre-trial conference that counsel and all parties shall attend unless otherwise directed.

1851.7 Preliminary/Temporary Letters

Any order granting preliminary or temporary letters will provide that such letters will expire six months after the date of issuance. The order will further provide the petitioner to post a bond for the full amount of the estate assets alleged in the petition. Preliminary or temporary letters may be of limited authority as determined by the Court.

1851.8 Accounting Rules

(A) A copy of the Account of proceedings must be served with each Citation, and the Affidavit of Service of Citation must recite that a copy of the Account of Proceedings was also served.

(B) A copy of the Account of Proceedings must be served on each party signing a Waiver and Consent and the Waiver and Consent must acknowledge the receipt of the Account.

(C) If attorney’s fees, commissions, disallowances of claims or like matters must be approved, these items with the monetary values thereof must specifically be set forth on all petitions, Citations and Waivers and Consents.

(D) If any attorney other than the accounting party’s attorney appears, or if a Guardian Ad Litem is appointed, all accounting decrees must contain a Notice of Settlement unless the decree is approved by said persons as to form and content.

(E) In order for an accounting to be accepted for filing by the Court, the petition must state whether or not an inventory of assets pursuant to Uniform Rule of the Surrogate’s Court 207.20 has been filed with the Court.

(F) In all accounting proceedings, the petitioner may either cite the State Tax Commission as a party in interest, or submit proof of fixation and payment of tax or a no-tax letter, prior to the entry of a final decree.

(G) In all judicial accounting proceedings, an affidavit of legal services pursuant to Uniform Rule of the Surrogate’s Court 207.45 must be filed with the account of proceeding.

1851.9 Distribution of Estates

(A) In all estates, proof of full distribution in the form of receipts and releases must be filed with the court.

(B) Whenever the estate of a decedent has not been fully distributed within two years from the date when the first permanent letters of administration or letters testamentary were issued, where the gross taxable estate of such decedent does not require the filing of a federal estate tax return, and within three years if a federal estate tax return is required, the executor or administrator shall, file with the clerk of the court a statement substantially in the form prescribed in section 207.42 of the Uniform Rules for Surrogate’s Court.

1851.10 Safe Deposit Box Openings

A representative of the Surrogate’s Court shall be present at all safe deposit box openings held in Richmond County that are ordered pursuant to SCPA 2003(1).

1851.11 Guardianship Rules

(A) In addition to the requirements contained in the maintenance petition any application from a parent requesting withdrawal from a guardianship account must include a copy of the federal and state income tax returns of the applicant for the last three years.

(B) In order to ensure the proper opening of all initial guardianship accounts, where the court directs that the deposit be made jointly with the Clerk of the Surrogate’s Court, a representative of the Surrogate’s Court shall be present at the bank when the account is opened.

1851.12 Bonds

All bonds filed with the Court shall be accompanied by the Surety’s certificate of solvency and proof that the bonding company is licensed to do business within the State of New York.

1851.13 Subpoenas

Subpoenas presented to the Clerk’s Office to be “so ordered” by the Surrogate must be accompanied by a written statement of the attorney indicating the reasons why he or she requires it to be “so ordered,” except for subpoenas directed to a hospital, a library, a municipal corporation or any of its departments or agencies, or the State. If the subpoena is presented by a party or person not represented by an attorney, the written statement shall be made by such party or person.

1851.14 Temporary Restraining Orders

Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain, in addition to any other information required by law, an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application.

1851.15 Variance

Any of the rules set forth herein may be varied in the discretion of the Court for good cause shown.



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