A clear judicial trend is emerging within the New York County Surrogate’s Court; judges are increasingly cautioning against procedural non-compliance and disciplining persistent failure to adhere to court directives. When parties disregard statutory or court rules, judges are imposing consequences, whether by sua sponte intervention to protect estate assets, or dismissal of dormant proceedings to conserve judicial resources and compel compliance. Collectively, these decisions reflect a judicial commitment to maintaining procedural integrity in probate proceedings, promoting uniformity, accountability, and efficiency.

For instance, in In re Will of Nissenbaum, the Court dismissed an inordinately delayed probate proceeding for failure to prosecute under Section 209(8) of the New York Surrogate’s Court Procedure Act (“SCPA”) and Section 3216 of the New York Civil Procedure Law and Rules (“CPLR”). Notably, the Decedent’s distributees waited ten years after her death, and after Preliminary Letters Testamentary had been issued to the Petitioner, before filing their objections. Thereafter, the parties repeatedly failed to appear for court-ordered conferences or to meaningfully pursue discovery, prompting the Court’s dismissal of the proceeding. No. 2014-2388 (N.Y. Sur. Ct. Mar. 21, 2025) (Gingold, S.).

Likewise, in In re Cohn, the Court granted a petition requiring the preliminary executor to obtain a bond, despite the waiver clause within the Will, after the fiduciary failed to appear, failed to provide a current address, and exceeded the scope of his preliminary authority. 2025 NY Slip Op 30832(U) (Sur. Ct. N.Y. Cnty. Mar. 7, 2025) (Gingold, S.).

Both Nissenbaum and Cohn signify a proactive, rather than reactive, judicial approach. Surrogates are increasingly enforcing strict procedural compliance and indicating that disregard for, or failure to heed court directives will inevitably result in sua sponte intervention, dismissal, or heightened oversight to facilitate resolution and judicial economy.

The same enforcement measures are evident in recent discovery rulings. In In re Landau, the Court denied a motion to expand pre-objection Section 1404 of SCPA discovery, holding that speculative allegations of undue influence were insufficient to meet the “special circumstances” threshold required to justify discovery beyond statutory limitations. 2025 NY Slip Op 31244(U) (Sur. Ct. N.Y. Cnty. Apr. 8, 2025) (Mella, S.).

Similarly, in In re Will of Gould, the Court denied the Decedent’s spouse’s motion to broaden pre-objection depositions, finding the motion premature. The court emphasized that the Petitioner had not exhausted the discovery authorized by Sections 1404 through 1411 of the SCPA and reasoned that statutory procedure had to be followed before exceptions would be considered. No. 2022-1351 (N.Y. Sur. Ct. Mar. 13, 2025) (Gingold, S.).

Taken together, Landau and Gould reflect deliberate judicial efforts to maintain an equitable, focused, and efficient discovery process, free from unjust fishing expeditions or dilatory tactics that erode judicial integrity. 

This judicial trend illustrates that strict procedural compliance is essential to achieving just outcomes and ensuring finality for all parties. As family disputes and estate litigation have become increasingly complex, Courts are signaling that continued delays by litigants and their attorneys, and repeated pleas for extensions following noncompliance will no longer be tolerated.
  
Gary E. Bashian is admitted to practice law in the States of New York and Connecticut. He is a graduate of Boston University School of Law with a Juris Doctor Degree and New York University Graduate School of Law with an LL.M. in Taxation. Mr. Bashian is also admitted to practice before the United States Supreme Court, the U.S. Tax Court, the Federal District Courts for the Southern District of New York and the State of Connecticut and the United States Circuit Court of Appeals for the Second Circuit. 

Having practiced law for over forty years, Mr. Bashian is a frequent lecturer and author and concentrates in the areas of Estates and Trusts, Estate and Trust Litigation, Corporate and Commercial Litigation, Estate Administration, Estate and Tax planning, Elder Law and Guardianship Litigation, Business Planning, Asset and Wealth Preservation and High Net Worth Matrimonial Litigation. Mr. Bashian also served on active duty in the U.S. Army and retired as a First Lieutenant in the Judge Advocate General’s Corps.     

Mary Elizabeth Kellerman is admitted to practice law in New York. She earned her Juris Doctor magna cum laude from the Elisabeth Haub School of Law at Pace University in 2024, where she also completed a semester abroad at Comillas Universidad Pontificia in Madrid, Spain studying International and European Business Law.

During law school, Ms. Kellerman served as a Case Note and Comment Editor for the Pace Law Review and as President of the Estate Planning and Tax Law Society. She was also selected as a New York Bar Foundation Trusts and Estates Law Section Fellow, serving in the Honorable Brandon R. Sall ‘s Chambers at the Westchester County Surrogate’s Court.

Ms. Kellerman’s practice focuses on Trusts and Estate Litigation, Estate Administration, and Estate and Tax planning. Ms. Kellerman also has experience practicing in Commercial Litigation, representing clients in Courts throughout the New York metropolitan area.