Detailed Answer
Disclaimer: This article is for educational purposes only and does not constitute legal advice.
1. Statutory Basis for Removal
Under New York’s Surrogate’s Court Procedure Act (SCPA), the court may remove a personal representative for cause. See SCPA §707. Common grounds include misconduct, neglect of duty, or conflict of interest.
2. Right of Appeal
New York law allows a party aggrieved by an order removing a personal representative to appeal as of right. Pursuant to SCPA §217(2) and CPLR §5511, you file an appeal with the Appellate Division.
3. Timeline and Filing Procedure
- File a Notice of Appeal in the Surrogate’s Court within 30 days after service of the order with notice of entry. (CPLR §5511).
- Serve the Notice of Appeal on all parties.
- Pay the prescribed filing fee.
- Perfect the appeal by submitting the Record on Appeal, Appendix, and Briefs within the Appellate Division’s deadlines (generally four months after filing the Notice of Appeal).
4. Staying the Order
You may request a stay to halt the removal pending appeal. Under CPLR §5519, you can move for a stay or provide a bond. The court will weigh the potential harm to the estate.
5. Standard of Review
The Appellate Division reviews factual findings for clear error and legal conclusions de novo. Focus your arguments on factual mistakes and legal errors in the removal order.
Helpful Hints
- Mark all deadlines in your calendar immediately.
- Obtain a certified copy of the removal order promptly.
- Review Appellate Division rules on briefs and formatting.
- Consider hiring counsel experienced in Surrogate’s Court and appellate practice.
- Prepare to post a bond if you seek a stay of removal.
- Keep records of service dates and fee receipts.