NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8408
SPONSOR: Dais TITLE OF BILL:
An act to amend the surrogate's court procedure act, in relation to
allowing certain methods for service of process
2.
SOURCE OF BILL:
This bill is being introduced at the request of the Unified Court
System, on the recommendation of the Chief Administrative Judge's Surro-
gate's Court Advisory Committee.
3.
PURPOSE OF BILL:
This bill would simplify and modernize service of process requirements
for Surrogate's Court proceedings.
4.
SUMMARY OF PROVISIONS:
Section 1 of this bill amends SCPA § 307 to allow service of process
upon New York State residents by registered or certified mail without
the necessity of obtaining a court order, and to allow the court to
order service of process by electronic means.
Section 2 of this bill amends SCPA § 308 to update the time within which
process must be served, allowing for 10 days where service is made by
personal delivery, 20 days where service is made by other than personal
delivery within the United States, and 30 days in all other cases and
where the Office of the Attorney General is a party.
Section 3 of this bill amends SCPA § 309 to update the provisions for
when service of process may be deemed complete.
Section 4 of this bill provides the effective date, which is immediate.
5.
JUSTIFICATION:
This bill would amend sections 307, 308 and 309 of the Surrogate's Court
Procedure Act (SCPA) in relation to service of process in Surrogate's
Court proceedings. Currently, those sections require personal service of
process, but the experiences of courts, legal practitioners, and self-
represented litigants during the COVID-19 pandemic demonstrated that
alternative means of process are just as effective as, and at times
superior to, personal service. Accordingly, this measure is proposed to
simplify and modernize service requirements.
During the pandemic, the courts, practitioners and self-represented
litigants had to find ways to operate in an environment where personal
delivery of citations and other documents was impossible. Consequently,
other means of service of process had to be permitted in order for the
courts to function, which allowed these new modes of service to be test-
ed.
For example, SCPA § 307 has long prohibited service of process upon New
York residents by means other than personal delivery without a court
order. However, during the pandemic most Surrogate's Courts permitted
service upon New York domiciliaries by special mail service (Federal
Express, UPS, etc.), with no increase in demands for traverse hearings
due to lack of proper service, nor was there an increase in applications
to vacate defaults on that basis.
Additionally, some Surrogate's Courts utilized their discretion and
permitted service upon respondents by c-mail pursuant to SCPA § 307(3).
However, the statute does not explicitly mention the possibility of such
service. Given that law firms and most of society communicate electron-
ically, such a statutorily endorsed option is long overdue and the
proposal contains a specific provision for service by electronic means.
Finally, because the New York State Attorney General may be served by
mail at any office, the bill provides that the time for the Attorney
General's Office to be given notice of a proceeding is extended to 30
days unless otherwise modified by court order. This legislation is
supported by the Surrogate's Court Judges Association and the Surro-
gate's Court Chief Clerk Association, and has been endorsed by the
Trusts and Estate Section of the New York State Bar Association.
6.
PRIOR LEGISLATIVE HISTORY:
This bill was introduced and passed the Senate in 2024 (S.9783).
7.
FISCAL IMPLICATIONS:
None.
8.
EFFECTIVE DATE:
This bill would take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8408
2025-2026 Regular Sessions
IN ASSEMBLY
May 13, 2025
___________
Introduced by M. of A. DAIS -- (at request of the Unified Court System)
-- read once and referred to the Committee on Judiciary
AN ACT to amend the surrogate's court procedure act, in relation to
allowing certain methods for service of process
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1, 2 and 3 of section 307 of the surrogate's
2 court procedure act, as amended by chapter 355 of the laws of 2000, and
3 subparagraph (ii) of paragraph (a) and paragraph (e) of subdivision 3 as
4 amended by chapter 669 of the laws of 2022, are amended to read as
5 follows:
6 1. Service by personal delivery. Service of the process may be made on
7 any person by personal delivery [to him] of a copy of the process either
8 within or without the state.
9 2. Service by registered or certified mail, [return receipt
10 requested,] or by special mail service[, upon non-domiciliaries].
11 Service of the process may be made by registered or certified mail,
12 [return receipt requested,] or by special mail service, [upon non-domi-
13 ciliaries, whether or not they be natural persons] within or without the
14 state.
15 3. Service by court order. As an alternative to service under subdivi-
16 sions 1 and 2, service may be made in the manner directed by the court;
17 but such service, except as provided by subdivision 6, shall not be
18 ordered upon a domiciliary natural person unless it be shown that, with
19 due diligence, service [by personal delivery within the state] under
20 subdivision 1 or 2 cannot be effected, or where for good cause shown,
21 [personal service within the state] such service would be impracticable.
22 Any proof necessary hereunder may be submitted in the petition or by
23 affidavit. The court may take into account the size of the estate and
24 the remoteness of kinship of any person to be cited in determining the
25 appropriate due diligence necessary to permit alternate service under
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09845-01-5
A. 8408 2
1 this section. The court may direct service by any one or more of the
2 following methods, which shall not, however, be exclusive:
3 (a) service by publication, such as is provided by CPLR 316, subject
4 to 308 and 309, and to such variations of CPLR 316 as the court may
5 provide, except that
6 (i) where persons are to be served by publication, publication in only
7 1 newspaper shall be required, or
8 (ii) where a person is alleged to be within a country with which the
9 United States of America is at war or a place with which the United
10 States of America does not maintain postal communication, the court may
11 direct that a copy of the process shall be mailed on behalf of such
12 person to the officer who may have been appointed to take possession of
13 the property of noncitizen enemies, or
14 (iii) where the person to be served is an absentee or alleged to be
15 deceased, the court may direct that in addition to the foregoing
16 requirements, the process be published in a newspaper published at or
17 near the place where the absentee was last known to be, or
18 (iv) in an adoption proceeding under article seven of the domestic
19 relations law or in a proceeding under section three hundred eighty-
20 four-b of the social services law, a single publication in only one
21 newspaper shall be sufficient.
22 (b) service by [mail, by registered or certified mail with or without
23 return receipt requested, or by any manner of special mail service, as
24 the court may direct] electronic means, as that term is defined by CPLR
25 2103(f)(2), bearing the caption of the matter in the subject line of
26 said transmission;
27 (c) substituted service such as is provided by CPLR 308 (2) and (4),
28 within or without the state, subject to 308 and 309, and to such vari-
29 ations of CPLR 308 as the court may provide;
30 (d) service within or without the state, by personal delivery to a
31 person duly designated by respondent to receive process [in his] on the
32 respondent's behalf, or to a person whose relationship, whatever its
33 character, and by blood or otherwise to the respondent, indicates in the
34 circumstances the probability that actual notice will reach the latter
35 [through him];
36 (e) if the interest of a non-domiciliary noncitizen in the estate is
37 less than $2,500 or [his or her] such person's address is unknown or
38 such estate's gross assets are less than $25,000, by delivery of a copy
39 of the process to a consular official of the noncitizen's nation.
40 § 2. Paragraph (a) of subdivision 1 of section 308 of the surrogate's
41 court procedure act, as amended by chapter 685 of the laws of 1967, is
42 amended to read as follows:
43 (a) The citation shall be served at least the following number of days
44 before the return day:
45 (i) 10 days if the person is served within the state by personal
46 delivery;
47 (ii) 20 days if the person is served [without the state but] within
48 the United States, the District of Columbia, the Commonwealth of Puerto
49 Rico or the possessions or territories of the United States by other
50 than personal delivery; and
51 (iii) 30 days in all other cases and where the office of the attorney
52 general is a party.
53 § 3. Subdivision 2 of section 309 of the surrogate's court procedure
54 act, as amended by chapter 355 of the laws of 2000, is amended to read
55 as follows:
A. 8408 3
1 2. Service by other means. Unless the court directs otherwise, the
2 service of the process shall be complete when served by:
3 (a) mailing or by registered or certified mail, [with or without
4 return receipt requested,] upon the mailing thereof;
5 (b) special mail service, upon receipt of the envelope containing the
6 process by the United States Postal Service in the case of express mail
7 or upon receipt of the envelope containing the process by the designated
8 delivery service in the case of any other special mail service;
9 (c) substituted service, upon the delivery or affixing and the mailing
10 thereof, whichever is done last;
11 (d) personal delivery to a person duly designated by the respondent,
12 or to a person or consular official designated by the court by order to
13 be served in respondent's behalf, upon such personal delivery;
14 (e) publication, on the 28th day after the first publication; [or]
15 (f) electronic means, upon transmittal of the process to the recipi-
16 ent; or
17 (g) any other means, as the court directs.
18 § 4. This act shall take effect immediately.
