Does the CPLR apply in Surrogate’s Court?

Every litigation attorney knows the CPLR. They learn it while they are in diapers in law school. Or, while studying for the bar exam. It generally governs the civil procedure in all courts of New York State (see CPLR 101). It is the equivalent of the FRCP for federal court.

What most litigation attorneys do not know is that the Surrogate’s Court has its own set of rules – the SCPA. It sets forth rules on jurisdiction, pleading, proceedings, etc. It is particularly informative on proceedings by and against fiduciaries. But the SCPA does not cover several procedural matters. It does not talk about summary judgment motion practice or general discovery matters. Where are those rules? Can you use the CPLR to fill the gaps?

This is the same question I asked myself the first time I started practicing in Surrogate’s Court. I wanted to make a motion for summary judgment and did not know if the SCPA permitted it. I then found my best friend, SCPA 102. This section allows you to rely on the CPLR in Surrogate’s Court.

But there is an exception “where other procedure is provided” by the SCPA. A similar rule is found in CPLR 101, which applies the CPLR to all civil matters “except where the procedure is regulated by inconsistent statute.”   

So, yes, you can generally use the CPLR to fill the gaps in the SCPA. But before you do, you will need to compare the CPLR with the SCPA to make sure the exception from SCPA 102 does not apply.

Practice Tip: You can search the case law to see if the courts have applied a specific provision from the CPLR in Surrogate’s Court. In your legal database, search for the particular provision (e.g., “CPLR 3212”) along with the phrase “Surrogate’s Court”.

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