Matter of Sucich

[*1] Matter of Sucich 2015 NY Slip Op 50523(U) Decided on April 13, 2015 Sur Ct, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2015
Sur Ct, Dutchess County

In the Matter of the PROBATE PROCEEDING, ESTATE OF Diana C. Sucich, Deceased.



2014-262



CARL S. WOLFSON, ESQ.

Preliminary Executor/Petitioner

Mainetti, Mainetti & O'Connor, P.C.

11 Market Street

Poughkeepsie, New York 12601
James D. Pagones, J.

Attorney Carl Wolfson is the nominated Executor and appointed Preliminary Executor under the propounded instrument, dated August 1, 2006. Lori Sucich Jiava is a niece of the decedent and beneficiary under the decedent's Last Will & Testament. She supports an application filed by the proposed Executor for an Order authorizing service of a citation upon Nicholas Sucich (hereafter "Nicholas"), a nephew and distributee of the decedent, by electronic mail (e-mail) pursuant to SCPA §307(3).

As set forth in the application, Nicholas is alleged to be a fugitive from justice and is believed to have resided in Mexico, under an assumed alias, for the past twenty (20) years. It is alleged further that he has been estranged from the family, including the decedent, and his exact whereabouts is unknown. Nicholas is neither a named devisee or legatee under the decedent's Will. Indeed, it appears that absence has not made the heart grow fonder.

Lori Sucich Jiava is Nicholas's sister. She states in her affidavit that Nicholas will periodically contact her via e-mail or by pre-paid disposable telephones, the numbers of which are not traceable. Lori has provided proof that Nicholas has responded to the two (2) e-mail addresses set forth in her affidavit. There is also a mailing address in Mexico where Nicholas receives mail, but of which he does not reside. His only forms of communication are via e-mail or disposable telephones.

SCPA §307(2) provides that when a distributee resides outside the State of New York, [*2]service may be effectuated upon non-domiciliaries by certified mail, return receipt, registered mail, return receipt or by special mail carrier (ex: FedEx). Based upon the information disclosed in this application, Nicholas' physical address cannot be reliably ascertained. Previous attempts to locate Nicholas' physical address, or Nicholas himself for that matter, have been unsuccessful. The proposed Executor has exhausted his ability to locate Nicholas' whereabouts other than to confirm that he is living somewhere in Mexico under the alias Nicolas Francisco and may be receiving mail at a phantom address in that country. In all likelihood, the last known address of Nicholas is not valid but one of convenience only.

Service by publication, pursuant to SCPA §307(3)(a), is entirely imprudent financially and practically based upon the record.

SCPA §307(3)(b) allows for service of the citation "...by mail, by registered or certified mail with or without receipt requested, or by any manner of special mail service, as the court may direct" (emphasis added). Additionally, SCPA §307(3)(c) authorizes "substituted service such as is provided by CPLR 308(2) and (4), within or without the state subject to 308 and 309, and to such variations of CPLR 308 as the court may provide" (emphasis added).

The Court has taken judicial notice that the United States and Mexico are signatories to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. (20 UST 361, TIAS 6638.)

"...[w]hile service of process by e-mail is not directly authorized by either the CPLR or the Hague Convention, it is not prohibited under either state or federal law, or the Hague Convention, given appropriate circumstances...[B]oth New York courts and federal courts have, upon application by plaintiffs [in civil suits], authorized e-mail service of process as an appropriate alternative method when the statutory methods have been proven ineffective." (Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L., 78 AD3d 137, 141 [1st Dept. 2010].)

It is therefore clear from the cited statute and instructive case law that electronic service is an acceptable method in this Court "once the impracticability standard is satisfied" that reasonable efforts to accomplish service according to the methods specified in CPLR §§308(1), (2) and (4) are not feasible. (Safadjou v. Mohammadi, 105 AD3d 1423, 1424-25 [4th Dept. 2013].) Once that standard is met, the method of service reasonably calculated, under all of the circumstances, to inform the subject party of the action or proceeding can be fashioned (id).

The record reflects that the proposed executor has made a sufficient showing that service upon Nicholas Sucich is impracticable in view of his ongoing efforts to masquerade his identity and whereabouts in a foreign country. It further reflects that he and his sister Lori have communicated via two e-mail addresses, one of which contains a photo of Nicholas. Under the circumstances of this proceeding, service of the citation upon Nicholas Sucich by e-mail is an appropriate form of service. (Safadjou v. Mohammadi, supra, at 1425-26.)

The proposed executor is permitted to serve the citation in this proceeding upon Nicholas Sucich by e-mail to the addresses provided by Lori Sucich Jiava and by registered mail without return receipt to the last known mailing address in Mexico, addressed to "Mr. Nicholas Sucich" and, secondly, to his last known alias, "Nicolas Francisco;" and it is further

ORDERED, that an Affidavit of Service via e-mail and an Affidavit of Service by Mail must be filed with the Surrogate's Court of Dutchess County on or before the return date of the Citation.

The foregoing constitutes the order of the Court.

Dated:Poughkeepsie, New York

April 13, 2015

ENTER

HON. JAMES D. PAGONES, S.C.J. 040815 order