Can you file a counterclaim in Surrogate’s Court?

NY SCPA 302(1) expressly limits the types of pleadings allowed in Surrogate’s Court.  Unless directed by the court, the only pleadings allowed are a petition, answer, objections, and an account. 

What about a counterclaim?  Do you need permission from the court to file it?

Matter of Eshaghian, 144 AD3d 1155 (2d Dept 2016) briefly addressed this issue.  There, the court held that counterclaims had been properly asserted in the case, citing to the CPLR and SCPA in support of its conclusion.  Essentially, the court impliedly held that SCPA 302 is not specific enough to preclude a counterclaim and that the courts may therefore rely on CPLR 3011 to supplement the definition of an answer, which expressly provides that an answer may include a counterclaim.

Matter of Zalaznick, 84 Misc 2d 715 (Sur Ct, Bronx County 1975) also provides some guidance on this issue.  There, the court considered the issue of whether a cross-petition was permissible.  The court held that “[i]mplicit in a ‘petition’ being a proper pleading is the right of an adverse party to utilize a cross petition … in the same proceeding[.]”  The court was particularly concerned about a contrary holding, which would promote piecemeal litigation in different forums and cause significant delay.

While these cases provide authority for a party to interject a counterclaim in Surrogate’s Court, there is a counterargument to be made.  Among other things, SCPA 302 and CPLR 3011 both describe the types of pleadings permitted.  Insofar as SCPA 302 does not expressly permit answers to contain counterclaims, one could argue that the contrary provision of CPLR 3011 is inconsistent to the procedure set forth by the SCPA and should not be applied.   

Indeed, Matter of Eshaghian may have failed to consider the ramifications of relying on CPLR 3011.  Where counterclaims are included in an answer, that provision expressly requires a reply to a counterclaim.  Allowing respondents to interject counterclaims in a case based on CPLR 3011 would therefore mandate and expand the types of pleadings permitted in Surrogate’s Court so as to include a reply.  This in turn would arguably expand the types of pleadings permitted by SCPA 302(1) and arguably be inconsistent with the procedures set forth in the SCPA.   

Another argument against permitting counterclaims is based on the provisions of SCPA 2402, which sets forth the fees required for parties to file a pleading.  Whereas some petitions may cost up to $1,250 for the filing fee, the filing fee for an answer is only $75.  Arguably, the intent of this provision is to collect as much revenue as possible.  Allowing an answer to interject a counterclaim for only $75 would arguably be inconsistent with the procedures of the SCPA. 


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