ORDER In the above entitled proceeding, petitioner JPMorgan Chase Bank, N.A. prays this Court deem jurisdiction complete regarding the previously served purported citation by publication returnable January 8, 2020. Further, petitioner seeks to dispense with service of a supplemental citation as requested in petitioner’s affidavit dated January 14, 2020. On June 19, 2019, this Court ordered service of citation by publication in one newspaper, the Staten Island Advance, published in the County of Richmond, once a week for four successive weeks. The first publication was made at least twenty-eight days before the September 20, 2019 return date. The dates of publication were July 5, 2019, July 11; 2019, July 18, 2019, and July 25, 2019. The published citation failed to include the name of Chief Clerk, Ronald M. Cerrachio in the publication, as required by SCPA §307 and §308. As a result of this omission, this Court denied petitioner’s application to deem publication complete on September 20, 2019 and directed that the purported citation be corrected and a new supplemental citation be submitted to the Court, made returnable on January 8, 2020. Instead of submitting a supplemental citation, petitioner published the same earlier citation in the Staten Island Advance on December 5, 2019, December 12, 2019, December 19, 2019, and December 26, 2019, which now properly included the name of Chief Clerk, Ronald M. Cerrachio, and the changed returned date of January 8, 2020. Due to the petitioner’s failure to obtain a supplemental citation, the purported second publication was deemed defective on January 8, 2020. Petitioner requested the opportunity to submit an affidavit in support of the corrected publication. On January 14, 2020, petitioner filed an affidavit in support for an order dispensing with service of a supplemental citation, explaining that a corrected citation was published to include the name of the Chief Clerk Ronald M. Cerrachio, and while this citation was never approved by this Court, it was otherwise in compliance with SCPA §307 and §308. According to CPLR §315, the court on an ex-parte motion can order citation by publication in a proceeding in which service cannot be made with due diligence by personal delivery or substituted service. In re Phalen’s Will, 4 N.Y.S. 408, 410 (Gen. Term 1889). The SCPA §307 and §308, states that a surrogate court may issue a supplemental process at any time and require any party to procure it and cause it to be served, in conformity with the pertinent provisions of SCPA §307 and §308. In Gray v. Journal of Fin. Pub. Co., the Surrogate of the county of New York ordered service of the citation on nonresident parties by publication in the New York Law Journal and in the Journal of Finance, once a week for six weeks. 2 Misc. 260, 261 (Com. Pl. 1893). The respondent failed to publish it during the succeeding and third week of the period as directed by the Surrogate’s order. Id. This publication was deemed defective because its duration was too short, therefore it was necessary to prepare a petition for a supplemental citation and obtain an order from the Surrogate directing a new publication of the citation. Id. The appellant in In re Bradley’s Will, petitioned the court for a decree revoking the probate of a will, in which the Surrogate issued a citation directed to the legatees named in the will, citing them to appear at the proceeding. 23 N.Y.S. 1127, 1130 (Gen. Term 1893). Since most of the legatees were nonresidents of the state, an order of publication was made, directing the citation be published in a newspaper for six successive weeks. Id. However, the citation was only published for four weeks. On the return date of the citation, the appellant applied to the Surrogate to issue a supplemental citation, which was then properly served. Id. In this particular proceeding, the citation by publication returnable January 8, 2020 was published pursuant to the first order of this Court, not as a supplemental citation. The second citation by publication, while it contained the name of the Chief Clerk, was published without the approval and authority of this Court. However, the citation was in correct form pursuant to SCPA §307, §308 and CPLR §316, and indicated the proper return date for the proceeding, which was provided on September 20, 2019 by this Court. In Valz v. Sheepshead Bay Bungalow Corp., et al., the Court of Appeals held that if publication of the citation is made in error in the wrong newspaper, but publication is made in a newspaper which could have been designated by the court for publication, then the error is an irregularity rather than a jurisdictional defect. 249 N.Y. 122, 133 (N.Y. 1928). In this proceeding, this Court, pursuant to CPLR §2001, would have merely issued the citation that was ultimately published by the petitioner through the issuance of a supplemental citation. Similarly, the purpose of the statutory directions for a publication of the summons in newspapers, is to give a respondent notice of a bringing of an action and an opportunity to defend. Valz, 249 N.Y. 122, 134-35. “The means of service is to bring actual notice of these proceedings to the attention of the respondent.” In re Last Will of Maynard, 41 Misc. 3d 1232(A), (Sur. 2013). Although a citation by publication is not the most favorable method of providing notice, this citation complied with the requirements of SCPA §307 and §308. Therefore, since the duration and form of this citation were proper, and the only defect was the failure to obtain a supplemental citation from this Court, the citation by publication is deemed effective. The citation gave possible interested parties the opportunity to appear in Surrogate Court for the proceeding, as possible interested parties have all the necessary information regarding the estate in the citation. It is then hereby, ORDERED, that the petitioner’s application to dispense with service of a supplemental citation is granted; and it is further ORDERED, that this proceeding is pending decree subject to the report of a Guardian ad Litem. The Surrogate would like to thank Angelica Montemarano for her assistance in the preparation of this decision. Dated: February 11, 2020
