Matter of Vescio

[*1] Matter of Vescio 2012 NY Slip Op 52308(U) Decided on December 12, 2012 Sur Ct, Nassau County McCarty, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2012
Sur Ct, Nassau County

In the Matter of Probate Proceeding, Will of Ennio Vescio, a/k/a ENNIO A. VESCIO, Deceased. Proceeding Pursuant to SCPA 2103 by Violetta Butler, Preliminary Executor of the Estate of ENNIO VESCIO, a/k/a ENNIO A. VESCIO, Deceased. Proceeding pursuant to SCPA 2103 by LUCIA STORACE VESCIO, pursuant to Limited Letters of Administration issued November 2, 2009, in the Estate of ENNIO VESCIO, a/k/a ENNIO A. VESCIO, Deceased.



Proceeding Pursuant to SCPA 2103 by Violetta Butler, Preliminary Executor of the Estate of ENNIO VESCIO, a/k/a ENNIO A. VESCIO, Deceased.



Proceeding pursuant to SCPA 2103 by LUCIA STORACE VESCIO, pursuant to Limited Letters of Administration issued November 2, 2009, in the Estate of ENNIO VESCIO, a/k/a ENNIO A. VESCIO, Deceased.



355398/A-K

Edward W. McCarty, III, J.

In related probate and miscellaneous proceedings, the only issue before the court is the fee of the guardian ad litem appointed for the decedent's three minor children, Linda Vescio, Emma Vescio, and Ennio Vescio, Jr., all of whom have since attained the age of majority.

The guardian ad litem was initially appointed in the contested probate proceeding and was subsequently appointed to represent the interests of his wards in the two SCPA 2103 discovery proceedings. These proceedings have been pending in the court for nearly three years. The parties have resolved their differences pursuant to a stipulation of settlement. The guardian ad litem has filed a final report wherein he recommends approval of the stipulation; however, since all of his wards have now attained the age of majority, court approval is not necessary (SCPA 2106).

A guardian ad litem is entitled to a fee for his services rendered (SCPA 405).

With respect to the issue of attorneys' fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate (Matter [*2]

of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Vitole, 215 AD2d 765 [2d Dept 1995]; Matter of Phelan, 173 AD2d 621, 622 [2d Dept 1991]). While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily" (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of Wilhelm, 88 AD2d 6, 11-12 [4th Dept 1982]).

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent (Matter of Kelly, 187 AD2d 718 [2d Dept 1992]); the complexity of the questions involved (Matter of Coughlin, 221 AD2d 676 [3d Dept 1995]); the nature of the services provided (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]); the amount of litigation required (Matter of Sabatino, 66 AD2d 937 [3d Dept 1978]); the amounts involved and the benefit resulting from the execution of such services (Matter of Shalman, 68 AD2d 940 [3d Dept 1979]); the lawyer's experience and reputation (Matter of Brehm, 37 AD2d 95 [4th Dept 1971]); and the customary fee charged by the Bar for similar services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; Matter of Freeman, 34 NY2d 1 [1974]). In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another, but must strike a balance by considering all of the elements set forth in Matter of Potts, (123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]), and as re-enunciated in Matter of Freeman (34 NY2d 1 [1974]) (see Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]). Also, the legal fee must bear a reasonable relationship to the size of the estate (Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]; Martin v Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]). A sizeable estate permits adequatecompensation, but nothing beyond that (Martin v Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]; Matter of Reede, NYLJ,

Oct. 28, 1991, at 37, col 2 [Sur Ct, Nassau County]; Matter of Yancey, NYLJ, Feb. 18, 1993, at 28, col 1 [Sur Ct, Westchester County]). Moreover, the size of the estate can operate as a limitation on the fees payable (Matter of McCranor, 176 AD2d 1026 [3d Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]), without constituting an adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; see e.g. Matter of Spatt, 32 NY2d 778 [1973]). Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]; Matter of Phelan, 173 AD2d 621 [2d Dept 1991]).

These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem (Matter of Burk, 6 AD2d 429 [1st Dept 1958]; Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]; Matter of Reisman, NYLJ, May 18, 2000, at 34 [Sur Ct, Nassau County]). Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee (Matter of Ziegler, 184 AD2d 201 [1st Dept 1992]). [*3]

By affirmation dated March 2, 2011, the guardian ad litem requested an interim fee for the approximately 166 hours rendered by him on these matters through the date of his application. By decision dated April 8, 2011 (Dec. No. 27177), the court awarded the guardian ad litem interim compensation of $25,000.00 on account, without prejudice to the ultimate determination regarding his fee. The guardian ad litem has now submitted an affirmation of services in which he avers that he has expended an additional 105 hours on these matters for a total of approximately 271 hours. The court notes that in his request for an interim fee, the guardian ad litem sought reimbursement for disbursements; however, he has now withdrawn his request for any and all disbursements.

The services performed by the guardian ad litem since his application for an interim fee include: review of order to show cause for revocation of preliminary letters; preparation of objections to extension of preliminary letters; preparation of petition seeking removal of co-trustees of 2008 Trust; preparation of petition seeking removal of co-trustees of 1997 Trust; participation in court conferences; preparation of memoranda of law; review of informal accountings for the estate and trust; correspondence and telephone communications with counsel; preparation of discovery demands; preparation for and attendance at depositions; meetings with counsel; review of proposed stipulations; participation in settlement negotiations; review of subpoenaed records; and preparation of final report.

The court has reviewed the contemporaneous time records submitted by the guardian ad litem. The court notes that some of the entries include travel time, which is not compensable (Matter of Trotman, NYLJ, May 13, 1998, at 32, col 2 [Sur Ct, Nassau County]). In addition, there are entries which reflect time spent by counsel on his interim fee request and preparation of his affirmation of services. Time spent by an attorney on his fee request is not compensable (Matter of Gallagher (NYLJ, Feb. 2, 1993, at 22, col 4 [Sur Ct, Bronx County]).

Here, the guardian ad litem was instrumental in effectuating a settlement in these extremely contentious matters. The settlement includes the waiver of commissions by the preliminary executor and co-trustees which the guardian ad litem avers results in a savings of $500,000.00. In addition, the surviving spouse has agreed to reduce the amount of her elective share to twenty percent (20%) of the decedent's assets located in the United States and ten percent (10%) of the decedent's assets located in Italy, resulting in a greater share for the decedent's children. The court is aware of the guardian ad litem's excellent reputation in the legal community and recognizes that his participation in these proceedings was instrumental in reaching the final settlement. Accordingly, the court awards the guardian ad litem an additional fee of $25,000.00 for a total fee of $50,000.00, which additional sum shall be paid out of the general estate within thirty (30) days of entry of the decrees herein.

This constitutes the decision of the court.

Settle separate decrees in the probate and miscellaneous proceedings.

Dated: December 12, 2012

EDWARD W. McCARTY III

Judge of the [*4]

Surrogate's Court