Matter of Maynard

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[*1] Matter of Maynard 2013 NY Slip Op 51958(U) Decided on October 31, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2013
Sur Ct, Nassau County

In the Matter of the Probate Proceeding of the Last Will and Testament of Gladys Maynard, a/k/a GLADYS KNIGHT MAYNARD, a/k/a GLADYS LOUISA MAYNARD, a/k/a GLADYS L. MAYNARD, Deceased.



2010-361715



Tip Henderson, Esq.

(Guardian ad Litem)

41 Forest Avenue, 2nd floor

Glen Cove, NY 11542

Thomas E. Brett, Esq.

(Estate Attorney)

125-10 Queens Boulevard, Suite 311

Kew Gardens, NY 11415

Edward W. McCarty III, J.



In connection with the petition to probate the will of Gladys Maynard, an interim report filed by the guardian ad litem for missing and unknown persons raised the following question:

Where the court ordered service of a citation on missing and unknown persons by publication in a newspaper which had ceased publication, and the citation was published instead in one of two successor newspapers to the defunct publication, has jurisdiction over the missing and unknown persons been accomplished?

BACKGROUND

Gladys Maynard (the "decedent"), a resident of Elmont, New York, died on November 17, 2009, survived by two sons, David Lamont Knight and James J. Maynard ("David" and "James"). The decedent left a will, dated May 2, 2007, which contains five small pecuniary bequests. The decedent's will then directs that the residue of the estate be added to the Maynard Family Trust, created by the decedent on May 2, 2007 for the benefit of James, who is disabled (the "trust"). Paragraph (2) (L) of the trust provides that upon the death of James, the trustees are to pay his funeral expenses and then to pay the principal and accumulated trust income to the decedent's nieces, DeAnna Hart, Judith Nesbitt and Brenda Moore, in equal shares. James survived the decedent but post-deceased four months later on March 10, 2010 leaving no spouse or children. [*2]

Decedent did not provide for David in her will. Article Sixth provides:

"I make no provision herein for my son, DAVID LAMONT KNIGHT, whom I love very much, but whose whereabouts are unknown and who has not been in touch with me for several years. In the event he should appear and be in need of food, clothing or shelter, I am confident that my relatives will assist him."

On August 9, 2010, a petition for probate was filed by DeAnna Hart and Brenda Moore, the nominated executors under Article Seventh of decedent's will. The petition reflects that decedent was survived by David, whose whereabout are unknown, and James, who post-deceased. Counsel for petitioner filed an affirmation of due diligence setting forth the comprehensive but ultimately unsuccessful efforts undertaken to locate David. On March 29, 2013, the court issued an order for service of citation by publication upon David and James and their respective executors, administrators, heirs at law, next of kin, distributees, legatees, devisees, husbands and wives or successors in interest. The order directed publication of the citation in the Franklin Square/Elmont/West Hempstead Herald once in each of four successive weeks. However, unbeknownst to the court, counsel or parties, the publisher of the newspaper designated in the court order, Richner Communications, Inc. ("Richner"), no longer published the designated newspaper. Instead, Richner had replaced the Franklin Square/Elmont/West Hempstead Herald with two other newspapers, namely, (1) the Franklin Square/Elmont Herald and (2) the Malverne/West Hempstead Herald. When counsel sent a fax to Richner to fulfill the court order, Richner published the citation in the Malverne/West Hempstead Herald.

On June 3, 2013, the court appointed a guardian ad litem to represent the interests of missing and unknown heirs. On August 20, 2013, the guardian ad litem filed an interim report in which he objects to the service of the citation by publication. He states that it was his understanding that this court intended to provide for service of the citation by publication in a local newspaper serving the decedent's community, Elmont. Instead, the citation was published in the Malverne/West Hempstead Herald. The guardian ad litem asserts that since the publication did not adhere precisely to the court's order of service by publication, the court lacks jurisdiction and the citation must be published again.

Counsel for petitioners responded by letter explaining that he intended to publish the citation in the newspaper named in the court order but had no knowledge or indication that Richner published many newspapers, and that it had ceased publication of the Franklin Square/Elmont/West Hempstead Herald. The citation was published, and the bill for $755.16 was paid by Judith Nesbitt. Counsel argues that requiring publication again will unduly prejudice the estate. He alleges that David disappeared years ago and the decedent made no provision in her will for him. All attempts to locate David have been unsuccessful. James, who post-deceased, resided in Texas for 25 years. James was disabled by mental illness; a family member has confirmed that he never married or had children. Under the circumstances, counsel asks that further publication be waived.

ANALYSIS

In Mullane v Central Hanover Bank & Trust Co., 339 US 306 (1950), the United States Supreme Court recognized that personal jurisdiction over persons missing or unknown can be achieved when service is made by publication. Justice Robert Jackson wrote: [*3]

"This court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect or even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights"

(id. at 317 [citations omitted]).

In New York State, service of process by publication is codified in SCPA 307 (a), subject to CPLR 316, and SCPA 308 and 309 (see 40 NY Jur Decedents' Estates §1039 [2d ed 2013]). The court order must direct publication in the newspaper "most likely to give notice to the person to be served" (CPLR 316 [a]).[FN1]

Where a citation is published in a newspaper other than the one named in the court order, as occurred in the present case, the question is whether the deviation from the court order "constitutes a technical and curable defect as contradistinguished from a fatal jurisdictional error" (Jacob Aks, Practice: Jurisdiction: Publication in Newspaper Other Than Named in Order, 14 Cornell L Q 228, 228 [1928]). "[D]ue process of law to which a party is entitled before he may be deprived of his property requires notice of the action and a reasonable opportunity to be heard" (id. at 230). In Valz v Sheepshead Bay Bungalow Corp., et al. (249 NY 122 [1928]) ("Valz"), the Court of Appeals concluded 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.

Thus, the factor which will determine whether publication in the Malverne/West Hempstead Herald is sufficient to achieve jurisdiction over missing and unknown persons in the present case is whether this court could have initially directed publication of the citation in the Malverne/West Hempstead Herald, even though the decedent had last resided in Elmont. More than 20 years ago, in a stepparent adoption proceeding before this court, Matter of Alexandre, Q.D., Anonymous (NYLJ, May 30, 1991, at 23, col 3 [Sur Ct, Nassau County]) ("Alexandre, Q.D."), the guardian ad litem for the putative father asserted that service of the citation over his ward was inadequate because the last known address of the putative father was in Baldwin, and the citation was published in a newspaper serving the neighboring community of Oceanside. Citing Valz, Surrogate Radigan noted that "[w]hen publication is an acceptable means of service of citation some discretion is vested in the Judge as to what newspapers shall be designated." The court concluded that despite the fact that respondent had last been known to live in Baldwin, a community nearby to Oceanside, the publication of the citation in the Oceanside newspaper met the statutory criteria of being "the means of service most liely [sic] to bring actual notice of [*4]these proceedings to the attention of the respondent putative father" (Alexandre, Q.D.). On that basis, the court determined that despite the objection of the guardian ad litem, jurisdiction had been obtained over the respondent.

The facts presently before this court involve publication of a citation in a newspaper serving West Hempstead and Malverne, rather than Elmont, where decedent last resided. However, as in Alexandre, Q.D., these are neighboring communities. While the newspaper in which the citation was published was not the newspaper named in the order issued by this court, the newspaper was a successor to the designated but defunct newspaper which had been named. In accordance with this court's decision in Alexandre, Q.D., this court is satisfied that the Malverne/West Hempstead Herald, a successor publication to the Franklin Square/Elmont/West Hempstead Herald, could have been designated by this court for publication. Thus, the publication of the citation in the Malverne/West Hempstead Herald is not a jurisdictional defect but a mere irregularity.

"At any stage of an action . . . the court may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded . . . ." (CPLR 2001). The decision of the Court of Appeals in Valz exemplifies the ability of a court to correct an error in service pursuant to a court order (Dublanica v Rome Hospital/Murphy Memorial Hospital, 124 AD2d 1042, 1043 [4th Dept 1986]).

The court finds that publication of the citation in the Malverne/West Hempstead Herald did not prejudice the respondents. As in Valz, the newspaper in which the citation was ultimately published could have been originally designated by the court for that purpose. If a mistake was made, it is a mere irregularity and not a jurisdictional defect, and the respondents were not prejudiced by it in any way.

The court finds that publication of the citation in the Malverne/West Hempstead Herald meets the criteria set forth in CPLR 316 (a); the court has jurisdiction over the missing and unknown parties named in the citation.

This constitutes the decision and order of the court. Proceed accordingly.

Dated: October 31, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court Footnotes

Footnote 1:Parenthetically, the court recognizes that publication of citations and legal notices in print newspapers may soon be replaced with publication in on-line newspapers and other digital forums. See, e.g., Lauren A. Rieders, Note, Old Principles, New Technology, and the Future of Notice in Newspapers, 38 Hofstra L Rev 1009 [Spring 2010]); John R. Higgitt, The Emergence of "E-Service" Under CPLR 308 (5), NYS Bar Journal, Vol. 85, No. 8, October 2013, at 28.