In the above-entitled proceeding, petitioner Angela Ricci prays this court deem jurisdiction complete over the unknown distributees regarding the previously served citation by publication, returnable on January 22, 2020. Petitioner, through counsel, presented an oral application on January 22, 2020 requesting this court deem jurisdiction complete, and submitted an attorney affirmation on January 30, 2020. On November 15, 2019, this court ordered service of citation by publication in the Staten Island Advance, published in the County of Richmond, once a week for four successive weeks. The “Legal Affidavit” from the Staten Island Advance incorrectly states the dates of publication as December 13, 2020, December 20, 2020, December 27, 2020, and January 3, 2020, as opposed to properly stating “2019.” The published citation also fails to include the following language, “A petition having been duly filed by Angela Ricci, who is domiciled at 21 Gadsen Place, Staten Island, New York 10304,” as required by SCPA 306 (1) (A). SCPA 306 (1) (A) directs that the citation must report the petitioner’s name and domicile address. Service by publication is the least favored form of service; however, it is a necessary alternative to personal service when interested parties and their whereabouts are unknown. The petitioner herein is an individual, Angela Ricci, who was named within the publication without an address. Although the domicile of the petitioner was not published, the name and address of petitioner’s counsel was included at the end of the publication. Moreover, the citation properly identifies the return date of the citation as January 22, 2020, the location of the Surrogate Court, and its Chief Clerk. The Surrogate Court in In re Estate of Plantone, held that the language in the citation by publication complied with SCPA 306 (1) (a), because it was broad enough to include the possibility that none of the respondent’s bequests could be paid to them (13 Misc 3d 482, 484 [Sur Ct, Monroe County 2006]). While the language in the citation was not specific, it placed the parties on notice that the court was about to “construe a will provision, and the construction may affect their interest” (id. at 485). “Citations must give interested parties an adequate basis to determine whether or not to make an appearance in and possibly contest, the proceeding” (id.). Even in the historic case before the Court of Appeals captioned Cook v. Kelsey, the court held that a publication missing the State of the proceeding was not fatal to the effectiveness of the publication (5 E.P. Smith 412 [1859]). The citation in Cook gave those whose rights were in jeopardy adequate notice of the proceeding and what rights were at risk. In this proceeding, the published citation provided adequate notice to those unknown distributees who, if they had seen the notice, could have inquired to the court through the Chief Clerk or to petitioner’s counsel regarding the proceeding, or appeared on the return date of the citation, January 22, 2020. In addition, the unknown distributees were given the opportunity to object to the issuance of a decree admitting the will of Madeline Bucceri into probate. Therefore, since the unknown distributees had the opportunity to appear in Surrogate’s Court for the proceeding, the citation by publication satisfies the requirements of SCPA 306 (1) (A) and is deemed effective. However, the petitioner must provide a new “Legal Affidavit” from the Staten Island Advance, correctly stating the dates of publication for the citation. It is hereby, ORDERED, that the petitioner must submit an amended “Legal Affidavit” from the Staten Island Advance within two (2) weeks; and it is further ORDERED, that upon the filing of such an amended affidavit, jurisdiction will be deemed complete over the unknown distributees. This constitutes the decision and order of the court. Dated: February 20, 2020
