I recently filed an Order to Show Cause in Kings County (Brooklyn) with a Petition commencing a guardianship proceeding pursuant to Article 81 of the Mental Hygiene Law.
I used the same form and format as I have in the past, which had never been rejected (until now).
On this particular occasion, the Clerk asked me to refile the Order to Show Cause with the service of process language matching the Sample Form provided by the court.
The language in the Sample Form reads:
ORDERED, that this Order to Show Cause, a copy of the Petition and the Notice of Proceeding upon which it is based, shall be served upon _________________, the person alleged to be incapacitated, by personally delivering to _________________not less than fourteen (14) days prior to the hearing date of this Order to Show Cause. ( Upon a showing by the Petitioner that service can not be effectuated in the above manner, the Court may direct an alternative means of service-changes – effective 12/13/04), and it is further
ORDERED, that this Order to Show Cause, Petition and Notice of Proceeding shall be served by facsimile, personal or by overnight delivery service to the office of _____________the Court Evaluator and ___________ the Court appointed attorney, within three (3) business days following the appointment of said __________ and ____________; and it is further
ORDERED, that this Order to Show Cause and the Notice of Proceeding shall be personally served or served by mail upon _________________, not less than fourteen (14)days prior to the return date of this Order to Show Cause; and it is further
My form read:
LET personal delivery, or, in light of the Covid-19 pandemic, any method of service which provides safe delivery, of a copy of this Order to Show Cause and of the papers on which it is granted upon __________, the alleged incapacitated person, on or before the ________ day of ______________________________, 20_____, be deemed good and sufficient service; and
LET service of a copy of the Notice of Proceeding and this Order to Show Cause, by mail, upon _________ [the persons interested], on or before the _____ day of ______________, 20__, be deemed good and sufficient service; and
LET service of a copy of the Notice of Proceeding, this Order to Show Cause and the papers on which it is granted by facsimile if a facsimile telephone number is designated by the attorney for that purpose or by personal delivery or by overnight delivery service upon _________________________, court evaluator appointed herein, and ______________________________, court appointed counsel to ______________, on or before the ________ day of __________________, 20____, be deemed good and sufficient service.
Although my Covid-19 provision, allowing for “any method of service which provides safe delivery” was often crossed out by the court, the other language in the Order to Show Cause directing the method and time period for service had never been rejected.
Pursuant to Mental Hygiene Law Article (“MHL”) 81.07(e)(2)(i), “the order to show cause and a copy of the petition shall be personally delivered to the person alleged to be incapacitated not less than fourteen days prior to the hearing date of the order to show cause. ”
MHL 8.07(e)(2)(ii) requires that “the order to show cause and a copy of the petition shall be served upon the court evaluator and the attorney for the alleged incapacitated person, if there is one, by facsimile, provided that a facsimile telephone number is designated by the attorney for that purpose, or by delivering the papers personally or by overnight delivery service to the office of the court evaluator and the attorney for the alleged incapacitated person, if there is one, within three business days following the appointment of the court evaluator and the appointment of the attorney or the appearance of an attorney retained by the alleged incapacitated person.”
MHL 8.07(g)(2) requires that “[n]otice of the proceeding together with a copy of the order to show cause shall be mailed to the persons identified in paragraph one of this subdivision not less than fourteen days prior to the hearing date in the order to show cause.”
Both of the above sample service of process provisions are correct, but the provision in the Kings County Sample Form requires less work for the court – they don’t have to spend time calculating dates. The courts are inundated with cases and the easier you can make it for the clerk, court attorneys, and judges to approve your papers, the better.
In Kings County, you’ll want to be sure that the service provisions in your Orders to Show Cause mirror the language in the Sample Form.