Case Summary: In the Matter of the Estate of Juan Brillon; In the Matter of the Estate of Cruz Brillon

Factual and Procedural Background

The proceedings arise from contested applications for letters of administration in the estates of Juan Brillon and Cruz Brillon. On October 6, 1988, the court entered an order that, among other things, directed the decedents' sons to answer interrogatories within 20 days of that order and directed that the decedents' daughter be deposed on November 30, 1988. Because the respondents (the sons) failed to answer the interrogatories as directed, the decedents' daughter moved, invoking CPLR 3126 and CPLR 5015, to prohibit respondents from opposing her designation as administratrix of the estates.

The return date for the motion was November 23, 1988. Movant mailed the notice of motion and supporting papers to counsel for respondents on November 10, 1988. Respondents opposed the court's jurisdiction to entertain the motion on the ground that service was not timely under CPLR 2214 and CPLR 2103(b)(2), citing computation rules that they contend require a longer period for mailed service.

Legal Issues Presented

Whether the motion papers were timely served when mailed on November 10, 1988, for a motion returnable November 23, 1988, under CPLR 2214(b) and CPLR 2103(b)(2), and whether General Construction Law § 20 alters the computation so as to deprive the court of jurisdiction.
Whether, as a consequence of respondents' failure to answer interrogatories, the movant is entitled to the sanctions sought under CPLR 3126 and relief under CPLR 5015 (the motion to prohibit respondents from opposing her designation as administratrix).

Arguments of the Parties

Movant's Position

Movant mailed the notice of motion and supporting papers on November 10, 1988 for a motion returnable November 23, 1988, and thus contends the papers were timely served.
Implicit in movant's action is reliance on CPLR 2214(b) (an eight-day requirement before the return date) and CPLR 2103(b)(2) (addition of five days when service is made by mail) to establish timeliness.

Respondents' Position

Respondents contend the court lacks jurisdiction to entertain the motion because service was not timely under CPLR 2214 and CPLR 2103(b)(2), asserting that General Construction Law § 20 requires a notice of motion mailed 14 days before the return date because neither the mailing date nor the return date may be included in the computation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Leatherby Ins. Co. v Villafana, 82 Misc.2d 144, 146	Cited for the ordinary rule of computing time periods: exclude the reckoning date (first day) and include the last day of the prescribed period.	The court relied on this rule of computation to reject respondents' contention that a 14-day period was required for mailed service and to support its calculation that the mailing on November 10 satisfied the additional five days required for mail service.
Seminole Hous. Corp. v M M Garages, 78 Misc.2d 755, 758 (mod on other grounds 78 Misc.2d 762; affd 47 A.D.2d 651)	Also cited for the accepted method of computing statutory time periods (exclude the first day, include the last day).	The court cited this authority for the same computation principle and applied it to conclude that the five-day mailing allowance was satisfied by the November 10 mailing for a November 23 return date.

Court's Reasoning and Analysis

The court identified the statutory timing requirements: CPLR 2214(b) prescribes that a notice of motion and supporting papers must be served eight days before the return date, and CPLR 2103(b)(2) adds five days when service is made by mail. Calculating the interval from the November 10 mailing to the November 23 return date yields 13 days (23 − 10 = 13), which on its face satisfies an 8-day requirement plus a 5-day mailing allowance.

Respondents relied on General Construction Law § 20 and argued that neither the date of mailing nor the return date may be included in the computation, which would allegedly require mailing 14 days before the return date. The court rejected this interpretation. It explained the customary rule for computing periods: exclude the initial (reckoning) day but include the last day of the period. The court cited Leatherby Ins. Co. v Villafana and Seminole Hous. Corp. v M M Garages for that computation rule.

Applying that method to the facts, the court observed two acceptable countings that demonstrate compliance with the mailing requirement: either (a) include the 15th and count November 11 through November 15 as the five-day mailing allowance, or (b) include the 10th and count November 10 through November 14. Under either approach, the November 10 mailing satisfied the five additional days for mailed service. Based on that computation, the court concluded the papers were timely served.

Holding and Implications

Holding: The court held that the notice of motion and supporting papers mailed on November 10, 1988, were timely served for a motion returnable November 23, 1988, and accordingly the court has jurisdiction to determine the motion.

Implications:

The immediate consequence is that the court may proceed to adjudicate the movant's application (the motion invoking CPLR 3126 and CPLR 5015 seeking to prohibit respondents from opposing the movant's designation as administratrix).
The opinion's analysis is confined to the timeliness-of-service and jurisdictional question; it does not resolve the merits of the requested sanctions or the administratrix designation in this excerpt.
The court did not purport to establish a new legal rule beyond applying established time-computation principles to the facts; no broader change in precedent is announced in the provided text.

This summary is limited to and derived solely from the content of the provided opinion excerpt.

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In the Matter of the Estate of JUAN BRILLON, Deceased In the Matter of the Estate of CRUZ BRILLON, Deceased

LEE L. HOLZMAN, S.

In what are essentially contested applications for letters of administration in the above estates, the court entered an order on October 6, 1988, which, inter alia, directed decedents' sons to answer interrogatories within 20 days of the entry of the order and further directed that decedents' daughter be deposed on November 30, 1988. Predicated upon the failure of respondents to answer the interrogatories as directed, decedents' daughter moved pursuant to CPLR 3126 and 5015 PLR to prohibit respondents from opposing her designation as administratrix of the above estates.

The return date of this motion was November 23, 1988. Movant mailed the notice of motion and supporting papers to counsel for respondents on November 10, 1988. Respondents allege that the court does not have jurisdiction to entertain the motion because it was not timely served upon them pursuant to CPLR 2214 and 2103 PLR (b) (2).

The applicable time period for service of a notice of motion and supporting papers is eight days before the date on which the motion is noticed to be heard (CPLR 2214 [b]). In the instant case, since service was made by mail, five days must be added to the prescribed period (CPLR 2103 [b] [2]). It cannot be reasonably argued that November 10, the date the papers were mailed, is not 13 days before November 23, the return date of the motion (23-10=13). However, respondent contends that General Construction Law § 20 requires that a notice of motion must be mailed 14 days prior to the return date because neither the date of mailing nor the return date of the motion can be included in the computation. The court cannot agree that 8 and 5 adds up to 14. In computing a period of time it is usual to exclude the reckoning date or the first day but then the last day of the period must be included (Leatherby Ins. Co. v Villafana, 82 Misc.2d 144, 146; Seminole Hous. Corp. v M M Garages, 78 Misc.2d 755, 758, mod on other grounds 78 Misc.2d 762, affd 47 A.D.2d 651). Consequently, in determining whether the requisite additional days' notice required by the mailing had been completed by November 15, one must either include the 15th and conclude that the requirement was met by counting the 11th through the 15th, or include the 10th and conclude that the requirement was met by counting the 10th through the 14th. Accordingly, it is determined that the papers were timely served and that this court has jurisdiction to determine the motion.

MATTER OF BRILLON