Quasi Hearings

            Initially, there were no uniform Surrogate’s Court rule. Each Surrogate promulgated his or her rules for their counties.

 

            In the 1970s, the presiding justices of the Appellate Divisions and then the Chief Judge of the Court of Appeals called upon the Surrogates to formulate uniform rules. A committee of chief clerks and members of the law departments of the Surrogate’s Courts formed by the Surrogates were charged with the responsibility of preparing drafts of uniform rules for the Surrogate’s Court. The various local rules were compared and polling took place among the Courts in order to consolidate the existing rules and formulate uniformity.

 

            One of the observations was that there are instances within SCPA where certain

examinations called for were more than routine Article 31 CPLR examinations. They are SCPA 1404 examinations of attesting witnesses; SCPA 2102 examinations of fiduciaries regarding assets and status of estate administration; SCPA 2103 and 2104 dealing with the inquisitorial stages of discovery proceedings and examination of fiduciaries in accounting proceedings pursuant to SCPA 2211.

 

            It was the consensus of the Surrogates that these examinations were equivalent to quasi hearings and that they should be conducted at the Courthouse so that either the Surrogate or an attorney staff member may either preside over those proceedings or be readily available to make rulings as the examinations progressed. The Surrogates found that there were great delay in having the examinations held at attorneys’ offices, resulting in postponements in order to secure rulings from the court. To aid in finalizing the proceedings and to make them more cost effective, the Surrogates recommended that a rule be promulgated to require that the proceedings be held at the Surrogate’s Courthouse and accordingly, uniform Surrogate’s Court Rule 207.28 was enacted.

 

            Unless otherwise directed by the Court, the examinations are not to be conducted until jurisdiction has been obtained over all necessary parties, including a guardian ad litem, if one was appointed.

 

            Taking of the examinations outside of the Courthouse may be authorized if good cause is shown (Section 207.1(b) of the Uniform Rules for the Surrogate’s Court). Generally, the examinations are held at the Courthouse but either geographical reasons or incapacity of the parties or like instances will be a basis to seek a waiver from the Surrogate. The practice has been so well received that exceptions have been minimal.

 

            N.B. New York County and Kings County do NOT follow the uniform rules and almost always conduct Rule 28 examinations outside the Courthouse with outside dates set by the Court.