In re the Estate of Worms
OPINION OF THE COURT
At issue in this probate proceeding in the estate of Marie Worms is whether service of a citation on a nonresident, without court order, is valid under the requirements of SCPA 307 if made by United States Postal Service (USPS) Express Mail, return receipt requested.
Until 1995, service by mail was not proper without court order. But the governing statute, SCPA 307 (2) (b), was amended (L 1995, ch 481, eff Sept. 1, 1995) to provide, in relevant part, that a court order is unnecessary if service of process on a non
Although the statute specifies several types of service, it also makes clear that the enumerated methods are not exclusive (SCPA 307 [2]). Whether service is made by one of the methods specified in the statute, or by some other method prescribed by the court, the underlying principle is the same: notice of the proceeding must be given by a type of service that is consistent with due process. In this connection, "due process” requires a method of service calculated to assure the likelihood that the party to be served will receive actual notice of the proceeding.
Accordingly, this court, as a rule, has required that service by mail, with or without court order, be made by registered or certified mail, return receipt requested. If for some reason service is to be made by ordinary mail, that reason must be presented to the court and endorsed by a court order allowing such service.
As noted in other contexts (see, e.g., Matter of Aitken,
There are two features that have made registered and certified mailing, return receipt requested, the favored forms of mailing under the statute as construed by the court. First, with respect to registered and certified mailings, unlike ordinary mailing, USPS records that an item (having an identified addresser and addressee) has been deposited (at a certain time) to its care and custody. Second, the return receipt provides objective evidence that the item has been received by an addressee or by someone authorized by the addressee. In short, both special methods of mailing supply "governmental — as distinguished from personal — proof of mailing and of delivery and thereby proof of receipt” (Perl v New York City Hous. Auth.,
It is observed, furthermore, that USPS Publication 543 (Feb. 1995), which provides a full description of Express Mail procedures, confirms that an Express Mailing, with return
Accordingly, it is concluded that the service of process in question was effective for purposes of SCPA 307 (2) (b).