Matter of Simpson

[*1] Matter of Simpson 2005 NY Slip Op 52156(U) Decided on December 28, 2005 Surrogate's Court, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 28, 2005
Surrogate's Court, Bronx County

IN THE ESTATE OF AARON SIMPSON, also known as AARON FRANK SIMPSON, Deceased



22-A/05

Lee L. Holzman, J.

In this accounting proceeding, the decedent's brother filed a claim against the estate. The Public Administrator, the administrator of the estate, served the alleged creditor with process directing him to show cause why his claim should not be disallowed and he defaulted on the return date. He also mailed papers to the court stating various complaints about the administration of the estate. However, he has not filed objections in the form required by law.

On the return date of this proceeding, the Public Administrator orally requested that a guardian ad litem be appointed for the claimant because he may be under a disability. In his submissions, the claimant has requested that legal services be provided to him on a pro bono basis, alleging that he has financial and health problems but not that he is mentally incompetent. The decedent's four children, his sole distributees, opposed the request for the appointment of a guardian ad litem on the record in open court, on the basis that is unfair to their interests to expend estate funds so that the claimant may pursue, at their expense, what they contend is a frivolous claim.

A review of the record reveals that the claimant alleges that he suffers from chronic physical pain but there is no evidence that he is mentally incompetent. Under the circumstances, it would be contradictory, as well as inequitable, to conclude that the claimant has sufficient mental capacity to file a valid claim but is not competent enough to represent himself or to obtain counsel on his own. The claimant is not a distributee of the decedent and this court is not aware of any provision of the law that permits the claimant to have free legal services appointed for him so that he may pursue his claim, which certainly does not fall within the class of claims that are usually litigated in estate proceedings. Moreover, it is well settled that the prevailing party may not recover attorneys' fees from the losing party except, unlike here, where authorized by statute, agreement or court rule (U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 NY3d 592, 597 [2004]; Chapel [*2]v. Mitchell, 84 NY2d 345, 349 [1994], quoting Hooper Assoc., Ltd. v. AGS Computers, Inc., 74 NY2d 487, 491 [1989]; Mighty Midgets, Inc. v. Centennial Ins. Co., 47 NY2d 12, 21-22[1979]). Clearly, the law does not require the prevailing party to pay the legal expenses of the losing side. However, this is exactly what the court would be ordering if it required the estate to pay for the claimant's counsel and the claimant did not prevail.

Accordingly, this decision constitutes the order of the court denying both the application of the Public Administrator for the appointment of a guardian ad litem for the claimant and the claimant's request that the court appoint an attorney for him. Nevertheless, the claimant is given until February 14, 2006 to file objections in the form required by law accompanied by the required filing fee, unless the appropriate documents to obtain a waiver of the filing fee are also filed.

Finally, the court notes that the failure to appoint a guardian ad litem for the claimant, if he is under a disability, does not preclude him from obtaining that relief in the future in the event that it is ever determined that the claimant, in fact, presently suffers from a disability which requires that a guardian be appointed for him. If this is ever determined to be so, jurisdiction has not been properly obtained over him in the accounting proceeding and he would still have the right to seek recovery against the decedent's distributees (see EPTL Art. 12).

The Chief Clerk is directed to serve a copy of this decision and order upon the claimant and counsel for the Public Administrator.

SURROGATE