Matter of Daniels

[*1] Matter of Daniels 2006 NY Slip Op 50553(U) [11 Misc 3d 1074(A)] Decided on March 31, 2006 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2006
Sur Ct, Dutchess County

In the Matter of the Estate of Neil Daniels, Deceased.



94496/2005



Vincent L. Teahan, Esq.

Guardian Ad Litem

Teahan & Constantino, Esqs.

41 Front Street, Suite A

P.O. Box 1181

Millbrook, New York 12545

Bernard F. Mcgovern, Esq.

Capell Vishnick, LLP Attorneys for Petitioner

Edna L. Stegman

300 Marcus Avenue, Suite 1E9

Lake Success, New York 11042

William F. Bogle, Jr., Esq.

Corbally, Gartland & Rappleyea

Attorneys for Objectant

Joanne Stone

35 Market Street

Poughkeepsie, New York 12601

Eliot Spitzer, Esq.

Attorney General of the

State of New York

120 Broadway

New York, New York 10271

James D. Pagones, J.

In this probate proceeding, attorney Vincent L. Teahan was appointed guardian ad litem ("GAL") for unknown distributees. The propounded instrument is dated March 14, 2003.

The GAL has filed a sixteen page report with two exhibits. It contains a thorough, fair, and objective presentation of facts germane to this proceeding. (Riley v. Erie Lackawanna R. Co., 119 Misc 2d 619, 621 [Sup. Ct., Chautauqua Cty. 1983]; Guidelines for Guardians Ad Litem, May, 2003, pg. 22.) For example, the GAL provides important background information concerning the existence and location of distributees, of which there appears to be none; determining the actual status of persons identified in the propounded instrument as the decedent's relatives when they were in fact related to his late wife Dorothy; interviewing the attorney-draftsman of the will and his secretary regarding the events surrounding the will execution, dispositive provisions in wills previously executed by the decedent, facts relating to a guardianship proceeding initiated under Mental Hygiene Law Article 81 of which the decedent was the subject about 18 months after he signed the instrument for probate and observations about facts and circumstances relating to the propounded instrument. The report will also assist the court in ultimately determining the genuineness of the propounded instrument and the validity of its execution. (SCPA §1408; EPTL 3-2.1.)

The issue under consideration is the reasonable compensation to be allowed for the services provided by the GAL. (SCPA §405[1].) He has filed an affirmation of services supported by copies of contemporaneous time records setting forth the nature and extent of his services. (Matter of Burk, 6 AD2d 429 [1st Dept. 1958].) The attorney for the petitioner has urged the court to examine some of the services undertaken by another attorney and a paralegal employed by the guardian ad litem's firm for possible duplication, as well as the type of work they performed. Additionally, the necessity of some of the time spent by the GAL has been cited. The request has merit. [*2]

This decision is not about the GAL's integrity, abilities, or diligence, all of which are unquestioned. The court recognizes that there is wisdom in the counsel of many. In the final analysis, however, the substantive legal work must be performed exclusively by the GAL and not delegated to someone else. (Matter of Kaborycha, NYLJ, 12/31/01 at pg. 24, col. 6, Sur. Crt., Nassau Cty.; Rubenstein, LexisNexis AnswerGuide New York Surrogate's Court, §15.10[1][2006 edition].) An application to the court for a "secondary appointment" pursuant to the Rules of the Chief Judge, 22 NYCRR §36.1(10), can be utilized in the event the GAL believes an allocation of work is required. (LexisNexis AnswerGuide New York Surrogate's Court, supra.)

The petition for probate estimates the value of the gross testamentary estate at $1 million. The court has considered the following factors in determining a reasonable award to the GAL. They are: the actual time spent, the nature and extent of the services, the necessity of the services, the difficulties of the issues involved, the benefit accruing to the estate, the customary fee charged by the legal community for similar services, the professional standing of the attorney, and the results obtained. (Matter of Potts, 241 NY 593 [1925]; Matter of Freeman, 34 NY2d 1 [1974].) The court has subtracted from this formula those services determined to be superfluous.

The GAL has submitted an efficacious report. The court sets the fee of the GAL in the amount of $6,715.00 after applying the above factors. The fee is to be paid from the estate. (SCPA §405[1][a].)

On this application, the Court considered the affirmation of services of the GAL with one exhibit and affidavit.

Settle decree within ten (10) days of the date of this decision.

The foregoing constitutes the decision of the Court.



Dated:Poughkeepsie, New York

March 31, 2006ENTER

Hon. James D. Pagones, S.C.J.

TO: