In re the Estate of Keily

51 Misc. 2d 686, 273 N.Y.S.2d 679, 1966 N.Y. Misc. LEXIS 1450

Opinion

John D. Bennett, S.

This is a motion to strike the note of issue served by the proponent on the grounds that the matter is not ready for trial and a statement of readiness was not simul taneously filed with the court. The contestant contends that the discovery proceedings and other procedural matters have not been completed and, therefore, the note of issue is premature.

The note of issue served by the proponent is not intended to be the note of issue required under the Buies of the Appellate Division. Said rules do not apply to the Surrogate’s Court, but were specifically promulgated for the purpose of calendar control in courts other than the Surrogate’s Court. This court is not confronted with calendar congestion and trials can be had within a short period of time. There is presently pending before the Appellate Division for approval a note of issue and statement of readiness prepared by this court specifically to be employed by the Surrogate’s Court.

This court requires that the note of issue notice under section 148 of the Surrogate’s Court Act and an order framing issues be filed with the court so that the court will be able to keep a control on its calendar. The filing of same in no way will preclude the contestant from completing all of the discovery proceeding, as the same is not the equivalent of filing a statement of readiness.

This matter will be set down for trial for a date certain when the court is convinced that all proper discovery proceedings have been completed. Accordingly, the motion to strike the note of issue is denied.