Opinion
2004-0025.
Decided January 31, 2005.
Before the court is a motion to file amended Objections to Probate and a cross motion to strike the Objections and treat them as a nullity. The crux of the matter is that the Objections filed by Christopher J. Moran, Esq., on behalf of Honey Sharp Lippman (hereafter Ms. Lippman), on November 15, 2004, were not verified.
Christopher J. Moran, Esq., HINMAN, HOWARD KATTELL, LLP, Attorney for Honey Sharp Lippman, Binghamton, NY.
Lee Sharp, Pro se, Johnson City, NY, and Westview Station, Binghamton, NY, Johnson City, NY.
A brief review of the history of this matter is required in order to place the present motions in context. On November 27, 2002, Ms. Lippman filed a proceeding to require Lee Sharp (hereafter Mr. Sharp) to produce the will of Juliana B. Sharp (hereafter Mrs. Sharp). Ms. Lippman is the daughter and Mr. Sharp is the adopted son of Mrs. Sharp. In that proceeding Mr. Moran appeared as attorney for Ms. Lippman and Mr. Sharp appeared pro se.
As a result of the proceeding, on or about April 1, 2003, either the originals or copies of 5 wills were produced, wills dated respectively November 9, 1972, March 29, 1974, January 14, 1977, February 2, 1979, and July 21, 2001. The July 21, 2001 will was a notarized holographic will, but lacking two witnesses. It has not been offered for probate. EPTL § 3-2.1. The original of the March 29, 1974 will was offered for probate by Ms. Lippman on January 15, 2004. Again, Mr. Moran appeared as attorney for Ms. Lippman and signed the probate petition as her attorney. Mr. Sharp filed Objections to the probate of this will on April 12, 2004. Again he appeared pro se.
On April 14, 2004, Mr. Sharp, again acting pro se, filed to probate a photocopy of the February 2, 1979 will. An amended probate petition was filed by him on July 14, 2004. To date the original of this will has not been located or filed with the Court.
A Citation in regard to probate of the 1979 will was issued to Ms. Lippman and others on July 16, 2004, returnable September 9, 2004. Ms. Lippman was served with the citation on or about July 21, 2004 at her address in Massachusetts by special mail service. SCPA § 307(2). A notarized Affidavit of such service by mail signed by Mr. Sharp was filed with the Court on July 27, 2004. At the return date of the Citation on September 9, 2004, Mr. Sharp filed with the Court an Affidavit of Deliverability in which he stated that he had in his possession receipts for the special mail service and that the process served had not been returned as undeliverable. Also on September 9, 2004, Mr. Moran appeared at the return day as attorney for Ms. Lippman and filed with the Court a Demand for Examination of Witnesses pursuant to SCPA § 1404. On September 16, 2004, the Court issued an Order directing that the examination of witnesses take place on November 8, 2004, and the examination did take place on that date. Again, Mr. Moran appeared on behalf of Ms. Lippman and examined the witnesses and Mr. Sharp appeared pro se and also examined the witnesses. On November 15, 2004, Mr. Moran filed the unverified Objections to probate of the 1979 will that are the subject of these motions. This filing was within 10 days of the 1404 examination as required by SCPA § 1410.
On December 1, 2004, Mr. Sharp, pro se, filed a "Notice of Election to Treat Respondent's Unverified Objections to Probate as Nullity" pursuant to CPLR § 3022. The law is clear that such an election must be made within 24 hours of service of the unverified pleading. Professor Siegel, the leading expert on New York Practice, so states, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3022:2, p. 396, and the Third Department has repeatedly so held. Air New York Inc. v. Alphonse Hotel Corp. 86AD2d 932 (3rd Dept. 1982); Matter of Lentlie v. Egan 94 AD2d 839 (3rd Dept. 1983); Ireland v. Zoning Appeals Bd 169 AD2d 73 (3rd Dept. 1991). Thus the court holds that this objection is waived by the delay by Mr. Sharp in asserting it.
Nevertheless, a Motion to Amend the Pleadings was filed on December 13, 2004, which requests leave of Court to add the missing verification pursuant to CPLR § 3025(b). CPLR §§ 2001 and 3026 provide that the Court may permit such amendment at any time provided a "substantial right of a party is not prejudiced." In his responding papers at page 34, Mr. Sharp claims to have been prejudiced in several ways.
First, he asserts he has been prevented from demanding a jury trial. However, when the motion to amend the pleadings is granted, it has been held that the time to demand a jury runs from the date the amended pleading is filed. Matter of Schneier 74 AD2d 22 (4th Dept. 1980); SCPA § 502. Thus Mr. Sharp still has the right to demand a jury and is not prejudiced.
Second, he claims he has been denied the right to demand a Bill of Particulars. However, CPLR § 3042 sets no time limit for such demand and so it can be demanded at any time, including after the amended Objections are filed. Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3042:2, p. 527. Again, there is no prejudice.
Third, he alleges he has been denied the opportunity to file a reply to the Objections. But a reply to Objections is neither necessary nor permitted. SCPA § 302 says "Pleadings shall consist of the petition . . . objections . . . there shall be no other pleading . . ." Since there can be no reply there is no prejudice.
Fourth, he says he has been prevented from filing the Citation upon filing of Objections required by SCPA § 1411. Again, the statute sets no time limit so the Citation could be filed after the amended Objections. Even more significant, SCPA § 1411(3) provides the Citation shall be issued to "each person named or referred to in the propounded instrument who has not appeared in the proceeding . . ." The only persons named in the propounded 1979 will are Mr. Sharp and Ms. Lippman. Both have appeared in the proceeding, and thus there is no one to be served with the SCPA § 1411 Citation. Again there is no prejudice.
Finally, he complains that his demand for a 1404 examination, dated October 4, 2004, was returned to him without being ordered by the Court. Since the Court had already entered an order on September 16, 2004, setting the date for the examination, his demand was unnecessary. Further, since the examination was actually held on November 8, 2004, the purpose of his demand has been met. Again there is no prejudice.
There being no prejudice to Mr. Sharp, the motion to file amended Objections to Probate to the 1979 will is granted, and thus the lack of verification is corrected, if necessary.
Turning to the Cross Motion of Mr. Sharp, the main point made throughout the Cross Motion of 14 pages and Legal Brief of 46 pages plus attachments, is the allegation that the Court does not have personal jurisdiction of Ms. Lippman in the proceeding to probate the 1979 will. This is based on the fact that Mr. Moran did not file a notice of appearance in the probate proceeding for the 1979 will and also did not file "acknowledged evidence of authority so to appear." SCPA § 401(3).
First, it is clear that personal jurisdiction over a party to a probate proceeding is obtained by service of a Citation upon her. SCPA § 1403 and 306. In this case, service was made by Mr. Sharp upon Ms. Lippman as a non-domiciliary by special mail service as permitted by SCPA § 307(2). In the Court file is the notarized Affidavit of Service by Mail signed by Mr. Sharp and dated July 27, 2004. Also in the file is the notarized Affidavit of Deliverability also signed by Mr. Sharp and dated September 9, 2004. Thus by Mr. Sharp's own actions, the Citation was properly served upon Ms. Lippman and personal jurisdiction obtained over her by the Court.
But Mr. Sharp argues that Ms. Lippman did not appear personally on September 9, 2004, the return day of the Citation, and since Mr. Moran did not file a notice of appearance in this proceeding nor acknowledged evidence of authority, there was in effect a default. This despite the fact Mr. Moran had appeared for Ms. Lippman in all the prior proceedings relating to this estate and actually appeared in Court on September 9, 2004 and filed the demand for a 1404 examination on that date.
SCPA § 401(3) actually says: "Where a party is a non-domiciliary . . . the Court may require . . ." a notice of appearance and evidence of authority. (Emphasis added). Thus the filing of such documents is discretionary with the Court. In this case, the Court did not deem the filing of such to be necessary in light of the fact that Mr. Moran had appeared for Ms. Lippman throughout the proceedings related to Mrs. Sharp's estate for a period of over two years. Mr. Sharp argues that Uniform Rule 207.9(b) provides that attorneys "must provide acknowledged evidence of authority" and that this supersedes the statute. This is plainly not so, rules do not overrule statutes, rather a rule that is inconsistent with the statute upon which it is based is not effective. "There is no question that these administrative rules cannot supersede a duly enacted statute of this state." Matter of Lent 156 Misc 2d 805 (Surr.Ct. New York Co. 1992). Furthermore, Rule 207.9(b) itself says "unless otherwise directed by the Surrogate . . ." again making plain that the filing of a notice of appearance and evidence of authority is discretionary with the Surrogate.
In addition, CPLR § 2001 provides "At any stage of an action, the Court may permit a mistake, omission, defect or irregularity to be corrected . . . or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity may be disregarded." As already demonstrated, there has been no prejudice to Mr. Sharp by permitting the pleadings to be amended. It is impossible to imagine there is any other prejudice. Mr. Sharp clearly knew since litigation regarding this estate has been ongoing for over two years, and his sister, Ms. Lippman, filed the 1974 will for probate, that she was involved in and objected to his proceedings. He has admitted receiving the Objections to probate of the 1979 will in his notarized "Affidavit in Support of Notice of Cross Motion to Strike Respondent's Unverified Objections to Probate" at page 2. He clearly knew that Mr. Moran had appeared for Ms. Lippman in regard to all prior proceedings in this Court relating to the estate of Mrs. Sharp and had signed the pleadings as her attorney in the Petition to Compel Production of Will and Probate Petition for the 1974 will. These papers are in the Court file and were served upon him. He also clearly knows that there are specific requirements to attempt to probate a photocopy of a will since he refers throughout his "Cross Motion", "Legal Brief" and "Amended Legal Brief" to this proceeding as an "SCPA 1407 Proceeding." SCPA § 1407 being the section that deals with "Proof of a lost or destroyed will". Yet again, the Court perceives no prejudice to Mr. Sharp. Thus the Court, in its discretion, holds that the omission to file a notice of appearance in the proceeding for probate of the 1979 will of Juliana B. Sharp is an irregularity that may be disregarded.
The parties other contentions have been considered by the Court and found to be without merit and are denied.
It is therefore:
ORDERED, that the Motion for leave to file amended Objections to Probate of the 1979 will is granted; and it is further
ORDERED, that the Cross Motion to Strike Respondent's Unverified Objections to Probate is denied.