Matter of Carver

[*1] Matter of Carver 2008 NY Slip Op 50632(U) [19 Misc 3d 1110(A)] Decided on March 27, 2008 Sur Ct, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2008
Sur Ct, Essex County

In the Matter of the Estate of Reginald Carver, Deceased.



2006-12021



Buttermore & Foltz (David B. Foltz, Esq., of counsel), Westfield, New Jersey for Jerry Carver.

Manning and Scaglione (David D. Scaglione, Esq., of counsel), Willsboro, New York for the Estate.

Richard B. Meyer, J.

Motion by the attorneys for Jerry Carver (Carver), a brother of the decedent, to approve legal fees and disbursements totaling $43,038.91 incurred in unsuccessfully contesting probate of the decedent's will (see In re Estate of Carver, 17 Misc 3d 1128[A], 851 NYS2d 68 [Table], 2007 WL 3407748) and directing payment thereof by the estate. Counsel for the executrix opposes the motion and by cross-motion requests approval of counsel fees and disbursements of $16,725.64 incurred in the contested probate proceeding and that Carver be directed to reimburse the estate for such expense. The non-jury trial occurred over a period of 3 days.

The rule is well-established in this state that absent a provision in statute, court rule or contract providing for the recovery of attorneys' fees "all parties to a controversy, the victors and the vanquished, pay their own counsel fees" (In re Estate of Urbach, 252 AD2d 318, 321-322, [*2]683 NYS2d 631, 633, citing Matter of Loomis, 273 NY 76, 6 NE2d 103; Matter of Povlsen, 62 Misc 2d 239, 308 NYS2d 168; see also Chapel v. Mitchell, 84 NY2d 345, 618 NYS2d 626, 642 NE2d 1082; Hooper Associates, Ltd. v. AGS Computers, Inc, 74 NY2d 487, 549 NYS2d 365, 548 NE2d 903). "Except when the SCPA otherwise provides or when compelling reasons exist for so doing, the court shall not fix attorneys' compensation or make allowances to parties for counsel expenses unless a proceeding is instituted under SCPA 2110 or unless, in an accounting, the petition and citation state that an application will be made for determination of compensation, the allowance of counsel expenses and the amount thereof." (22 NYCRR §207.45[b])

A petition to fix and determine counsel fees must be accompanied by an affidavit of services containing certain information, including the terms of retainer, whether the client has been consulted and consents to the requested compensation amount, and the extent of any dispute (22 NYCRR §207.45[a]).

In a contested probate proceeding, counsel fees may be awarded as an allowance to a "nominated executor, guardian, ad litem, guardian, committee or conservator, whether successful or not" (SCPA §2302[3][a]), and a court may direct payment of a successful party's counsel fees "by an unsuccessful contestant . . . only . . . where the court finds that the contest was brought in bad faith or was frivolous" (id.). Carver is not one of the designated parties to whom counsel fees may be awarded under this statute, and payment of an award of counsel fees against him does not lie here as his contest was neither frivolous nor brought in bad faith.

The parties' respective motions not only fail to include all of the information required by 22 NYCRR §207(a) but also seek allowances far in excess of the amount strictly limited by statute to "$150 . . . and $150 for each day, less one, necessarily occupied in the trial . . . and $50 for each day necessarily occupied in preparing therefore" (SCPA §2302[2][b] [ii]; see Matter of Will of O'Brien, 204 AD2d 983, 614 NYS2d 94). The motions must also be denied under SCPA §2302 since the issuance of the decree granting probate terminated the proceeding (SCPA §601; Matter of Will of O'Brien, supra ; Matter of Carroll 100 AD2d 337, 474 NYS2d 340).

Also, a separate proceeding under SCPA 2110 may be commenced "to fix and determine the compensation of an attorney" rendering services to a fiduciary, including an attorney serving as a fiduciary, or other person interested in the estate (SCPA §2110[1]) and "the court may direct payment therefor from the estate generally or from the funds in the hands of the fiduciary belonging to any . . . person interested" (SCPA §2110[2]). SCPA 2110 "does not authorize payment for legal services rendered a party to be charged against the share of other individual parties" (Matter of Dillon, 28 NY2d 597, 599, 319 NYS2d 850, 268 NE2d 646).

A proceeding under SCPA §2110 "shall be instituted by petition" (SCPA §2110[2]), and since no petition was filed by either party this court is without jurisdiction to consider granting [*3]relief under this statute (SCPA §203; 22 NYCRR §207.45[b]; see also Matter of Dix' Estate, 144 Misc 494, 259 NYS 449, holding that a proceeding to fix attorneys' fees may not be commenced by notice of motion). No compelling circumstances exist here warranting an exception to the requirement that a proceeding be commenced under SCPA 2110, particularly as neither party has complied with 22 NYCRR §207.45. Absent a proper application, a court may not fix and award counsel fees under SCPA §2110 "on a sua sponte basis" (Matter of Estates of Patchin, 106 AD2d 730, 732, 484 NYS2d 162, 164).

Finally, even if the merits were to be reached Carver's motion would be denied. Counsel fees may be awarded to an attorney representing a party other than the fiduciary where the attorney's efforts have benefitted the estate, such as by increasing or preserving its' assets or value (see In re Lounsberry's Estate, 226 AD 291, 234 NYS 680), by establishing the identity of persons entitled (or not) to share in the estate (see In re Wiltshire's Estate, 4 AD2d 981, 167 NYS2d 852; In re Reedy's Estate, 49 Misc 2d 81, 266 NYS2d 964; Estate of Altman, 1 Misc 3d 566, 770 NYS2d 582), or by causing a class persons to be "entitled to receive greater sums from the assets of the estate during administration than those that might have been expected without the applicant's efforts" (Application of Elias, Schewel and Schwartz, 55 AD2d 448, 451, 390 NYS2d 739, 742, citing Matter of Hirsch's Estate, 154 Misc 736, 278 NYS 255; see also Matter of Burns, 130 Misc 2d 317, 319, 496 NYS2d 921, affirmed 126 AD2d 809, 510 NYS2d 732). Here, however, Carver's unsuccessful contest of the will did not benefit the estate, or a class of persons interested in the estate, in any manner which would justify deviating from the general rule that a party is responsible for their own counsel fees and an award of counsel fees to be paid out of the estate assets.

The motion and cross-motion are each denied in all respects.

IT IS SO ORDERED.

ENTER

______________________________________

Richard B. Meyer

Surrogate Judge