October 29, 2015

Surrogate's Court: Trial by Jury


As in all courts in the State of New York, if a trial by jury is desired in the Surrogate's Court, a trial by jury must be demanded. In each case initiated in the Surrogate's Court, a jury demand must be made by the Respondent in the Respondent's answer or objections to the Petitioner's petition.  If the Petitioner wants the matter tried before a jury, the Petitioner must demand a trial by jury within 6 days after he or she is served with the Respondent's answer or objections.

If a demand for a trial by jury is not made as outlined above, the case will either be tried by the Surrogate himself/herself or by a referee appointed by the Surrogate's Court to hear the matter.

Surrogate's Court: "Appearing" in the Surrogate's Court


A legal "appearance" is an act by which a party to a Surrogate's Court proceeding, either directly or indirectly, consents to the jurisdiction of the Surrogate's Court and typically makes the Surrogate's Court aware of his or her position with respect the proceeding - either that he or she consents to the relief sought by the Petitioner or that he or she wishes to contest such relief sought. While physically appearing at the Surrogate's Court when your case is called will usually count as a legal appearance, if you are looking for directions to any of the Surrogate's Courts in New York, please visit http://www.nycourts.gov/courts/index.shtml.

Generally speaking, there are 4 ways a person appears in a Surrogate's Court proceeding:

     1) By filing a pleading with the Surrogate's Court which sets forth such person's position with respect to the proceeding; or
     2) By signing and filing a Waiver with the Surrogate's Court, which Waiver will usually state that the person filing such Waiver does not wish to contest the proceeding; or
     3) By filing a Notice of Appearance, which typically does not set forth such person's position with respect to the proceeding; or
     4) By physically appearing at the Surrogate's Court when your case is called and by verbally noting your appearance in the Surrogate's Court record.


Note that if a person is a child or a disabled individual, such person appears in the Surrogate's Court through his or her guardian and the Court has the authority to, and typically does, appoint a local attorney, called a Guardian Ad Litem, to protect such child or disabled person's interests in the proceeding.