In this contested estate, there is a pending probate proceeding filed by the attorney drafter and nominated executor (the petitioner) of a propounded instrument dated August 19, 2014 benefitting five alleged cousins of the decedent who are equal residuary beneficiaries and have appeared by separate counsel. Two neighbors of the decedent who are the only beneficiaries of another instrument dated May 30, 2017 (the cross petitioners) filed objections to the petitioner’s application for preliminary letters and a cross petition seeking to probate the later instrument. Thereupon, the parties entered into a stipulation which was “so-ordered” by the court pursuant to which, inter alia, the petitioner and one of the cross petitioners’ attorneys are jointly serving as temporary co-administrators of the estate.The cousins (movants) now move to dismiss the neighbors’ cross petition, pursuant to SCPA 209 (8), for failure to diligently prosecute the cross petition. In the alternative, they seek an order dismissing the cross petition should jurisdiction not be completed within 30 days of the date of the order determining the motion.The decedent died on June 9, 2017 at the age of 88, predeceased by her husband and without issue. The petitioner, the guardian ad litem appointed to represent unknown distributees and the Attorney General take no position on the motion.In support of the application, the movants note that although both instruments were drafted by the petitioner, who is also the nominated executor/co-executor of the later instrument, the petitioner only seeks to propound the earlier instrument because she has reservations concerning the later instrument, which was executed by the decedent when she was hospitalized approximately one week prior to her death without attorney supervision. The movants advance that the estate is “languishing” because the cross petitioners failed to take any steps to complete jurisdiction. Additionally, they cannot obtain an attestation affidavit from the second attesting witness to the later instrument and both attesting witnesses are expected to testify at the SCPA 1404 examinations concerning lack of capacity and due execution. The movants argue that the cross petitioners have abandoned their probate proceeding because of the aforementioned issues and now focus solely on seeking to determine the validity of an amended trust which favors the cross petitioners to the exclusion of the movants.In opposition, the cross petitioners state that any delay in obtaining jurisdiction is due to the movants’ refusal to provide any genealogical information, they engaged a genealogist to determine the decedent’s next of kin and are, in fact, attempting to complete jurisdiction.The power of the surrogate’s court to dismiss a proceeding for lack of prosecution pursuant to SCPA 209 (8) has been noted by the commentators to be akin to a CPLR 3216 motion to dismiss a plenary action for failure to prosecute (see Deborah Kearns, Practice Commentaries, McKinneys Cons Laws of NY, Book 58A, SCPA 209 [8], at 239 [2017 ed]). To obtain relief under CPLR 3216(b), the movants must establish: (1) issue has been joined; (2) one year has elapsed since the joinder of issue; and (3) a written demand by registered or certified mail, has been served by the movants requiring the other party to resume prosecution and to file a note of issue within 90 days after the receipt of the demand (CPLR 3216; Matter of Pierre, NYLJ, June 8, 2012 at 42, col 3 [Sur Ct, Kings County 2012]). The demand also must state that failure to comply with such demand is a basis for a motion to dismiss for lack of prosecution (CPLR 3216 [b] [3]).On this state of the record, although the motion is denied at this juncture for movants’ failure to comply with the statute (see SCPA 209 [8]; CPLR 3216), the court notes that the movants have been unduly prejudiced by the failure to advance the estate and will not countenance further undue delay. To that end, it is also noted that the petitioner recently filed an affidavit from a genealogist stating that there is conflicting testimony and documents submitted by the decedent in her petition for naturalization in 1956 and statements to the United States Holocaust Museum personnel, and a search of online Holocaust resources did not reveal any further documentation for the decedent or her family. The genealogist concludes that the decedent also gave conflicting information in her personal dealings; her surviving relatives knew her by a different name other than her birth name; and, the conflicting information and documents regarding the decedent’s birthplace and birth name make it impossible to research her family.Accordingly, this decision constitutes the order of the court dismissing the motion without prejudice to renewal in the event the cross petitioners fail to seek the issuance of citation with deliberate speed in accord with SCPA 1403 and acquire jurisdiction over all of the distributees together with the necessary parties. The cross petitioners are directed to obtain the issuance of citation within 45 days of this decision and order. Should they fail to do so, any party may settle a decree dismissing the cross petition.The Chief Clerk is directed to mail a copy of this decision and order to all parties.Proceed accordingly.
