IN RE: the ESTATE OF John P. SHANNON Sr. (2025)

MEMORANDUM AND ORDER

Appeal from an order of the Surrogate's Court of Saratoga County (Tatiana Coffinger, S.), entered September 7, 2023, which, in two proceedings pursuant to SCPA 2103, denied respondent's motion to dismiss the petitions.

In 2003, John P. Shannon Sr. (hereinafter decedent) purchased a home in the City of Saratoga Springs, Saratoga County and subsequently deeded respondent, his daughter, a joint tenancy interest with a right of survivorship.  Respondent was and remains a resident of Florida, and did not live in the home, which was encumbered by a mortgage and a line of credit.  Following an apparent dispute, decedent severed the joint tenancy terminating respondent's right of survivorship, resulting in a tenancy in common.  Decedent died in 2022 survived by his three children, leaving his one-half interest in the home as the only asset of the estate.  The home was then sold by respondent and petitioner, one of decedent's children and the executor of his estate.

Thereafter, petitioner, on behalf of the estate, filed two petitions pursuant to SCPA 2103 against respondent.  The first petition sought an order compelling respondent to turn over one-half of the expenses and payments made with respect to the home's maintenance, mortgage, line of credit and other upkeep during her co-ownership of the home.  The second petition sought an order directing respondent to attend and be examined regarding the home's expenses during the same time period.  Respondent moved to dismiss the petitions pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction, arguing that petitioner failed to pay the requisite witness fee and, therefore, service of process was improper.  Petitioner submitted opposition, and Surrogate's Court denied the motion.  Respondent appeals.

We affirm.  Respondent contends that service via certified mail was not authorized under the CPLR and was therefore insufficient to confer personal jurisdiction over her.  However, this argument was not made before Surrogate's Court and is impermissibly raised for the first time on appeal (see Matter of Colihan v. State of New York, 211 A.D.3d 1432, 1435 [3d Dept. 2022]), and is otherwise without merit because the procedure under the SCPA governs under these circumstances (see SCPA §§ 102, 210[2][a];  307[2];  Matter of Steinman, 183 A.D.3d 588, 590, 123 N.Y.S.3d 612 [2d Dept. 2020];  Re v. Truck–A–Tune, Inc., 191 A.D.2d 327, 327–328, 595 N.Y.S.2d 48 [1st Dept. 1993]).  Since respondent did not raise any challenge concerning the witness fee ruling by Surrogate's Court, such contention is deemed abandoned (see Currie v. Oneida Health Sys., Inc., 222 A.D.3d 1284, 1291, 202 N.Y.S.3d 789 [3d Dept. 2023]).  We have examined the parties’ remaining contentions and have found them to be without merit or rendered academic.

ORDERED that the order is affirmed, with costs.

Fisher, J.

Egan Jr., J.P., Reynolds Fitzgerald, McShan and Mackey, JJ., concur.