Surrogate GiganteESTATE OF HANS BEHM, A/K/A HANS J. BEHM, A/K/A HANS JOACHIM BEHM, Deceased (17/575) — In this pending probate proceeding, counsel for the petitioner filed an affirmation on April 11, 2018 requesting that jurisdiction be deemed complete over foreign distributees. Furthermore, petitioner seeks to amend the probate petition to the extent of indicating that two listed distributees, Manfred Keding and Klaus Keding, predeceased the decedent and, therefore, should not be listed as distributees.Counsel for petitioner argues that notwithstanding the non-receipt of the “pink cards” of the registered mailing that jurisdiction should be deemed complete. Counsel recites the numerous prior USPS registered mail attempts and the value of the within estate to further support counsel’s argument.Although ordinarily service is complete upon the mailing under SCPA 309(2)(a), Courts have found examples of where notice is not actually complete upon being mailed. In Re Estate of Mackey, 91 Misc. 2d 736, 738 (NY Sur Ct 1977). The distributee was a non-domiciliary of New York who refused to accept delivery of service and did not sign the return receipt that was requested. Id. The Court held that although ordinarily service is completed when notice is dropped in the mailbox according to SCPA §309(2)(a), if a respondent refuses to accept delivery, and the mail is returned to the sender with the return receipt unsigned, service in fact is not complete (emphasis added), regardless of the statute, and the Court will not file the proofs of service and mark service complete without the signed return receipt. Id.In the case before the Court, it is unclear if the notice that was sent via international registered and first class mail ever reached the doorsteps of the foreign nationals that the estate seeks jurisdiction over. The mail that contained notice could have been lost, stolen, or destroyed on foreign shores and this Court and counsel for petitioner would not have any knowledge of its whereabouts. While presumption of regularity may work for American mailboxes, it is difficult for this Court to hold the same for foreign mailboxes given the remoteness and complications of international mailing. To allow SCPA §309(2)(a) to extend to foreign individuals would likely harm the fundamentals and principles of notice.In Dobkin v. Chapman, 21 NY2d 490, 494 (NY 1968), respondents claimed that the method of service was inadequate and therefore violated their right to due process. The Court of Appeals held that if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly or adversely affect their legally protected interests and the notice required will vary with circumstances and conditions. Id. at 503.It has been the long standing policy of the Court that service via special mail with more sophisticated tracking abilities would raise the level of confidence in the Court’s decision to deem personal jurisdiction complete in cases involving foreign distributees. Special mail can resolve the shortcomings of international registered and first class mail. Special mail service would extinguish the necessity of filing a signed receipt card as petitioner can track the envelope and provide to the Court the tracking proof of actual delivery to the recipient’s address. While special mail service is usually more expensive than certified mail, its benefits justify the extra expense.The second issue is whether Manfred Keding and Klaus Keding can be removed as distributees. The only evidence provided by petitioner is an email from Michael Blettinger. Michael Blettinger provides in his email that he is the nephew of Manfred Keding and Klaus Keding. This evidence is not sufficient.The petitioner’s application is denied in its entirety. Petitioner is directed to file a third supplemental citation via special mail. This matter is made returnable on July 18, 2018 at 9:30 a.m.The Clerk of the Court shall mail a copy of this decision to all attorneys who have appeared in this matter.This decision shall constitute the Order of this Court.Dated: May, 2018
ESTATE OF A. PATRICIA DIPIETRO DELUCA, A/K/A PATRICIA DIPIETRO, A/K/A PATRICIA DELUCA, A/K/A PATRICIA DIPIETRODELUCA, A/K/A PATRICIA A. DIPIETRO-DELUCA, Deceased (18/123/A) — Petitioner seeks probate of a propounded instrument, dated November 7, 2017, as the Last Will and Testament of the decedent, and the issuance of Letters Testamentary.Petitioner contends that there will be a substantial delay in the completion of the probate proceeding, inasmuch as jurisdiction has yet to be obtained. Because of this delay, and the need to marshal decedent’s property and pay the necessary expenses of the estate, petitioner has applied for Preliminary Letters Testamentary.After reviewing the petition and the supporting documents, the application is granted. Pursuant to the provisions of SCPA 1412, Preliminary Letters Testamentary shall issue to Jeannine Roland, upon her duly qualifying according to law. These letters are subject to the limitations set forth in SCPA 1412(3)(a) and shall remain in effect for a period of six (6) months from the date of issuance.No distribution of assets is permitted pending the further Order of this Court, or until the admission of the Will to probate, and the issuance of Letters Testamentary.After reviewing the documents in support of the application, the Court dispenses with the filing of a bond by the petitioner.Pursuant to SCPA 1412(3)(b), the preliminary executor shall give notice to all parties who have appeared herein within ten (10) days of her appointment.This decision shall constitute the Order of the Court.Dated: March 9, 2018
