Today, the Second Department of the Appellate Division vacated a default in theMatter of Skolnick, (2013 NY Slip Op 05364) reversing the decision of the Surrogate’s Court of Rockland County. In this action, the objectant Stacy Ross had unsuccessfully attempted to vacate a default in the lower court after the Petitioner had failed to serve her personally with a citation and then, after moving to have her served by certified and regular mail. The problem here that Ms. Ross had evidently been vacationing down the Jersey Shore and none of the citation-bearing mailings had reached her until she returned home to find that a default had been take against her and the Will of the decedent admitted to probate.
The court opined that "An elementary and fundamental requirement of due process in any proceeding which is accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" . In making a determination as to whether notice is "reasonably calculated," the unique information about an intended recipient must be considered, "regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case" Here, given that the Surrogate’s Court was aware that Ross and her family would be away from her home in Sloatsburg until sometime in late September 2008, and was vacationing in Long Beach Island during that time, and given that there was no indication that Ross’s address in Long Beach Island was unavailable, in order for notice of the probate proceeding to be reasonably calculated to reach Ross, the Surrogate’s Court should have at least directed that the supplemental citation be mailed to Ross’s address in Long Beach Island, instead of solely directing that the supplemental citation be mailed to Ross’s address in Sloatsburg.