Matter of Smith
Annotate this CaseDecided on March 28, 2007
Sur Ct, Wyoming County
In the Matter of the Estate of Lucia P. Smith.
006-05
Michael F. Griffith, J.
The decedent died a resident of Wyoming County on December 22, 2004 leaving a Last Will and Testament dated July 11, 1985. Cross-petitions for probate and Administration C.T.A. were filed by Michael S. Smith and Judy L. Smith-Gorton which resulted in extensive pre-trial proceedings and delay in the probate of the Will. To safeguard the assets of the estate and with the consent of all parties, attorney David M. DiMatteo was appointed Temporary Administrator of the estate by Order dated April 4, 2005.
An agreement was reached among all parties and by stipulation and Order dated February 28, 2006 the Last Will and Testament dated July 11, 1985 was admitted to probate and the Treasurer of Wyoming County was appointed Administrator CTA.
By Decision and Order dated August 16, 2006, this court determined counsel fee applications by counsel for the various parties pursuant to SCPA 2110. At that time, the application of attorney David M. DiMatteo for fees for services rendered as Temporary Administrator and attorney for the Temporary Administrator was held for the settlement of his account as Temporary Administrator. Mr. DiMatteo's account and application for fees for services as attorney for the Temporary Administrator is now before the court. Waivers and consents to the Account from all interested parties, excluding the amount of attorney's fees, have been filed.
SCPA 2307 provides that in determining the commissions / compensation of a fiduciary, if the fiduciary is also an attorney who has provided legal services the court must determine and allow just and reasonable compensation for the legal services in addition to the commissions for services as fiduciary.
In determining an application for compensation of an attorney, including an attorney / fiduciary, the basic principles involved are:
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1. The court will only award fees for legal services that are necessary to the estate.
2. The fees must be reasonable in amount.
( 7 Warren's Heaton, Surrogates' Courts, §106.02, at 22-26 [7th ed]).
In the case of an attorney / fiduciary, the attorney will not be paid from the estate for providing services as a fiduciary or which are "executorial" in nature. (7 Warren's Heaton, Surrogates' Courts, §106.03 [1], at 46 [7th ed]); (Turano & Radigan, New York Estate Administration, § 13.07 at 474 [2006 ed]).
In assessing the reasonableness of fees, the criteria described in In Re Freeman (40 AD2d 397 [4th Dept 1973]) and In Re Potts (213 AD 59 [4th Dept 1925]) are commonly cited. These include:
1. The size or value of the estate. It should be noted that, in many situations, the size of the estate works as a limitation on the full value of the services rendered by the attorney. (Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966]). In this case the gross value of the assets accounted for is $129,897.05 ($104,649 in principal and $25,247.87 in income). The total of fees AND commissions sought by the Temporary Administrator is $25,266 or 20% of the estate (see Estate of McCranor, 176 AD2d 1026 [3rd Dept 1991]).2. The professional standing, reputation and experience of the attorney. Mr. DiMatteo is an experienced estate and real estate attorney in this county.3. Complexity and difficulty of issues involved. While the family situation remained acrimonious, most of the services provided here in the temporary administration of the assets (primarily real property and rental income / issues) were routine in nature.4. Results achieved. As a result of Mr. DiMatteo's services, the assets were protected or sold, rents collected and the real property preserved for sale or distribution by the Administrator CTA.
5. Time Spent.
The application seeks compensation for time spent by attorney and legal assistants. The application has been reviewed in detail for reasonableness and for the benefit rendered to the estate.
It is generally noted that while time spent is the starting point and an important factor, the other factors described above may be of greater importance. (7 Warren's Heaton, Surrogates' Courts, §106.03 [1], at 46 [7th ed]); (Turano & Radigan, New York Estate Administration, § 13.03 at 458 [2006 ed]).
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In his affidavit, Mr. DiMatteo indicates total time spent of 83.8 hours as attorney and 38.75 hours by "support staff." Attorney time has been billed in 15 minute increments at an apparent rate of $175 per hour. Paralegal time has been billed in similar increments at $75 per hour. The total of the fees requested is $17,821.25 (note: the court's calculation of the amount based upon the time spent is $17,571.25). Reimbursement for disbursements in the amount of $533.28 is also requested. In addition to the fees requested, Mr. DiMatteo also seeks approval of commissions in the sum of $7,444.75 as claimed on his account.
The court has reviewed the affidavit of services in detail. As noted above, compensation is not allowed for services which are administrative or "executorial" in nature (see Estate of Passuello, 184 AD2d 108 [3d Dept 1992]; Estate of Phelan, 173 AD2d 621 [2d Dept 1991]). To allow fees for time spent for such services would result in a double award, since such services are covered by the commissions on the assets administered (see Estate of Passuello, 184 AD2d at 112). The court finds that a total of 22.9 hours of attorney time and 15.5 hours of paralegal time were expended upon matters that were administrative or executorial in nature and did not require legal expertise. This leaves a total of 60.9 hours of attorney time and 23.25 hours of paralegal time to be compensated from the estate (see Matter of Schoonheim,158 AD2d 183 [1st Dept 1990]).
In view of the estimated value of the estate, local practice and the more routine, non-litigation nature of the services provided the court finds that hourly rates of $150 per hour for attorney time and $60 per hour for paralegal time are reasonable under the circumstances of this case (see Estate of McCranor, 176 AD2d at 1027).
Applying those amounts to the allowed time results in total fees to Mr. DiMatteo in the sum of $10,530.00 ($9,135 attorney fees plus $1,395 in paralegal charges). The court has examined the disbursements charged in the sum of $533.28 and finds all to be valid expenses of estate administration, resulting in a total award in the amount of $11,063.28. In addition to such compensation and reimbursement Mr. DiMatteo will be entitled to his commissions in the sum of $7,444.75 as claimed in his Account. Now, therefore, it is
ORDERED, that David M. DiMatteo be paid the sum of $11,063.28 from the proceeds of the estate as and for reasonable compensation and disbursements, and it is further
ORDERED, that Mr. DiMatteo shall submit a Decree of Judicial Settlement of his [*4]Account reflecting this Order within 30 days.
March 28, 2007
____________________
MICHAEL F. GRIFFITH
SURROGATE
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