For those of us who practice regularly before the Surrogate’s Court, a situation inevitably arises when an attorney needs to seek temporary injunctive relief on behalf of a client. For example, you represent a beneficiary of a trust who has justifiable concern that the fiduciary may misappropriate assets during the pendency of an accounting proceeding. In order to stave off this possibility, you file an application, by order to show cause, to suspend immediately the fiduciary and to seek preliminary injunctive relief. You also include in your requested relief an application for a temporary restraining order seeking to enjoin the fiduciary from selling, transferring, withdrawing, encumbering or disposing in any manner the trust’s assets pending further order of the court. Now a decision has to be made: Do you alert your adversary of your plan for temporary injunctive relief so that he or she can appear in court and object?

In Supreme Court, the decision is clear—in the absence of significant prejudice, an attorney must demonstrate to the court “that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application.” Uniform Rule, §202.7(f).

Thus, in practice, an attorney is called upon, in the absence of extreme prejudice, to telephone or e-mail his adversary to advise him that the attorney will be appearing in court the next day. A failure to do so should result in the denial of the ex parte application for a temporary restraining order. If an ex parte application for a temporary restraining order is improperly granted, the Appellate Division can correct the error and vacate the temporary restraining order. For example, in Testone v. Hoffman, 84 A.D.3d 1219 (2d Dept. 2011), the Appellate Division vacated the issuance of a temporary restraining order of the Supreme Court, Dutchess County. In doing so, the Second Department noted that the Supreme Court should not have granted the temporary restraining order “ex parte since the plaintiffs failed to allege or demonstrate ‘significant prejudice to the party seeking the restraining order by the giving of notice.’” Id. at 1220 (quoting Uniform Rule, §202.7(f)).

While the Supreme Court is guided by Rule 202 of the Uniform Rules, Rule 207 of the Uniform Rules applies to the Surrogate’s Court. Conspicuously absent from Rule 207 is any counterpart to Uniform Rule §202.7(f). Simply stated, there is no Surrogate’s Court rule requiring a party to provide any notice to an adversary before seeking temporary injunctive relief from the Surrogate’s Court. While Uniform Rule §207.1(d) does state that the provisions of Rule 207 “shall be construed consistently with the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trusts Law (EPTL)” and that “[m]atters not covered by these provisions, the SCPA and the EPTL shall be governed by the Civil Practice Law and Rules (CPLR),” it does not explicitly state that matters not covered by the provisions of Rule 207 shall be governed by Rule 202.

Surrogate Court Cases

Surrogate Lee Holzman recognized the inapplicability of Rule 202 of the Uniform Rules to the Surrogate’s Court in In re Terilli, NYLJ, Aug. 2, 1994, p. 28 (Sur. Ct. Bronx County). In a proceeding to determine the validity of a right of election, the decedent’s alleged surviving spouse moved pursuant to Civil Practice Law and Rules section 3124 to compel the respondent executrix to respond to interrogatories. In opposing the motion, the respondent argued, in part, that the movant failed to comply with Uniform Rule §202.7 which required the movant to seek to informally resolve the issue between counsel prior to filing a motion.1 Holzman disagreed and held:

Although the avoidance of unnecessary motion practice should always be encouraged, Rule 202.7 is not applicable to the Surrogates’ Courts inasmuch as Rule 202.1 expressly states that that section is applicable to the Supreme Court and County Courts.

Thus, it seems to follow from Holzman’s decision that since Rule 202.7 is not applicable to the surrogate courts, absent another rule to the contrary, there also would be no need to provide advance notice of seeking a temporary restraining order to an adversary.

Two years later, in the contested probate proceeding of Matter of Tancredi, NYLJ, July 24, 1996, p. 26 (Sur. Ct. Nassau County), the preliminary executrix, Maltida Lovero, decedent’s daughter and residuary beneficiary, and Rose Tancredi, another daughter and residuary beneficiary, moved for a protective order pursuant to CPLR § 3103(a) denying the guardian ad litem the ability to conduct their respective depositions. The guardian ad litem subsequently cross-moved for an order permitting him to conduct the depositions. The surrogate denied both the motion and cross-motion and directed the guardian ad litem to file his report.

After issuing his report one year later, the guardian ad litem renewed his request for Lovero’s and Tancredi’s depositions. The Surrogate’s Court agreed, noting that Lovero and Tancredi had relevant information on the issues of undue influence and testamentary capacity. The court also granted the guardian ad litem’s request to videotape the depositions.

In doing so, the court held, in part:

CPLR 3113(b) provides at examination before trial “the testimony shall be recorded by stenographic or other means subject to rules adopted by the appellate division.” Uniform Rule 202.15 provides a detailed procedure for the videotaping of examinations before trial. CPLR 3113(b) and the Uniform Rules have been interpreted broadly to permit the videotaping of a deposition despite the preference of the witness for an ordinary stenographic record…There is therefore no reason in this court’s view why the practice under CPLR 3113(b) and the Uniform rules for the Supreme and County Courts should not be adopted and applied in contested probate discovery in the Surrogate’s Court.

While the Tancredi court did not address the issuance of temporary restraining orders, it is significant for its general pronouncement that the Surrogate’s Court should adopt the rules of Part 202 for probate proceedings, which presumably would include the advance notice provision of Rule 202.7(f).

In the case In re Demarinis, NYLJ, Dec. 2, 1999, p. 37 (Sur. Ct., Nassau County), the Nassau County Surrogate’s Court reaffirmed its view that the rules of Part 202 apply to the Surrogate’s Court. In a contested probate proceeding, a dispute arose over the procedure for asserting objections during depositions. Specifically the objectant moved for an order that objections interposed during all future depositions be dealt with at a single motion for a protective order subsequent to the completion of the depositions. The preliminary executrix opposed the motion, in part, based upon the fact that the objectant failed to allege that he made any effort to resolve the discovery issues with his adversary prior to making the motion as required by Rule 202.7(a).

Citing Matter of Tancredi, the Surrogate’s Court ruled that “[g]enerally, the CPLR and the Uniform Rules of the Trial Courts have been held to be applicable to discovery in a contested probate proceeding.” Interestingly, the objectant did not dispute the applicability of Rule 202 to the Surrogate’s Court. Rather, he argued that his motion did not seek an order of disclosure or pertain to disclosure of a particular matter. Regardless, the Surrogate’s Court denied the objectant’s motion with leave to renew upon a failure of good faith efforts to resolve the problems at hand.

In Matter of Kirwood, 28 Misc.3d 1228(A) (Sur. Ct. Dutchess County, Aug. 31, 2010), the husband of the executrix of the Estate of Robert S. Kirwood moved pursuant to CPLR §2304 for an order quashing a court-ordered subpoena or, in the alternative, for a protective order pursuant to CPLR §3103 limiting the scope of the subpoena. In ruling that there was no basis to quash the subpoena or issue a protective order, the Surrogate’s Court first noted that the movant’s counsel failed to provide an affirmation of good faith effort as required by Rule 202.7. Nonetheless, the Surrogate’s Court decided to determine the merits of the motion despite this procedural deficiency.

Based upon the above, Holzman’s earlier decision would seem to be an exception. Simply stated, if Rule 202.7 applies to the Surrogate’s Court, then its requirement of advance notice before seeking a temporary restraining order also would apply to the Surrogate’s Court.

Rules and Actions

Yet, in an interesting twist, some Surrogate’s Courts apparently still consider the issue of Rule 202.7′s applicability to the Surrogate’s Court unsettled. For instance, on June 1, 2011, the Nassau County Surrogate’s Court released its own edict, stating as follows:

Judge Edward W. McCarty III, the Surrogate of Nassau County, announces that effective June 1, 2011, the provisions of 22 NYCRR 202.7 (a), (b), (c), (d) and (f) shall hereafter apply to all motions and orders to show cause filed in Surrogate’s Court Nassau County. The application of these rules will essentially require that in all motions relating to disclosure or to a bill of particulars, counsel for the movant must include an affirmation that he or she has conferred with counsel for the opposing party in a good faith to resolve the issues by the motion. The rules also require that any application for temporary injunctive relief must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application, unless the movant demonstrates that the giving of notice will result in significant prejudice.

The Richmond County Surrogate’s Court also has local rule §1851.14, which states:

1851.14 Temporary Restraining Orders

Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain, in addition to any other information required by law, an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application.

Thus, at least in Nassau and Richmond County Surrogate’s Courts, there is no confusion as to the applicability of Rule 202.7(f)’s advance notification requirement before seeking a temporary restraining order.

In Practice

In light of all of the above, one would think that the issue is settled: Before seeking a temporary restraining order in Surrogate’s Court, advance notification of such proposed relief must be provided to an adversary so that he or she will have an opportunity to appear in response to the application and presumably oppose the requested relief. However, anecdotal evidence exists of attorneys being served orders to show cause wherein temporary restraining orders have been granted without receipt of the requisite notice supposedly afforded by Rule 202.7(f).

Possibly, this was the result of an attorney’s unawareness of whether Rule 202.7 applies to an application for temporary restraining order before the Surrogate’s Court. Or, perhaps, the attorney thought that there was some equivocation as to the applicability of Rule 202.7 and decided to see if the Surrogate’s Court would grant a temporary restraining order without prior notice.

Should an attorney ever find himself or herself surprised by the receipt of an order to show cause with temporary restraining order signed by a surrogate without having received any prior notice that his or her adversary was seeking a temporary restraining order, he or she should notify the court and see if the court would consider having a hearing to consider whether the issuance of the temporary restraining order was appropriate. Even though the temporary restraining order was already granted, the fact that the attorney was not provided requisite notice could sway the court to vacate the temporary restraining order.

Conclusion

While the law appears to favor advising an adversary of an intention to seek a temporary restraining order, anecdotal evidence reveals that not all practitioners are aware, and perhaps not all Surrogate’s Courts uniformly believe, that Rule 202.7 applies to proceedings commenced in the Surrogate’s Court. Perhaps to resolve any ambiguity, the Uniform Rules of the Surrogate’s Court should be amended to state explicitly that Rule 202.7 applies to all motions and orders to show cause filed in Surrogate’s Court. Until that occurs, we suggest that practitioners contact the Surrogate’s Court prior to filing an order to show cause with temporary restraining order to confirm that advance notice to your adversary is required.

Or perhaps a practitioner may want to file with the Surrogate’s Court an order to show cause with temporary restraining order without alerting the adversary. You never know—that order may be signed and an adversary may never challenge its validity.

Sanford J. Schlesinger is a founding partner of Schlesinger Gannon & Lazetera. He is a fellow of the American College of Trust and Estate Counsel. Ross Katz is counsel at the firm.

Endnote:

1. Rule 202.7 states, in relevant part, as follows:

Section 202.7 Calendaring of motions; uniform notice of motion form; affirmation of good faith.

(a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.

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(f) Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain, in addition to the other information required by this section, an affirmation demonstrating there will be significant prejudice to the party seeking the restraining order by giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application. This subdivision shall not be applicable to orders to show cause or motions in special proceedings brought under Article 7 of the Real Property Actions and Proceedings Law, nor to orders to show cause or motions requesting an order of protection under section 240 of the Domestic Relations Law, unless otherwise ordered by the court.