Matter of Joosten ( Sturiale)
Annotate this CaseDecided on August 28, 2013
Sur Ct, Nassau County
In the Matter of the Accounting of Tiffany Joosten, as Executor of the Estate of
against
Anna Sturiale, Deceased.
2012-368343/A
Michael D. Humphrey, Esq. (for petitioner)
Vishnick McGovern Milizio, LLP
3000 Marcus Ave., Ste. 1E9
Lake Success, NY 11042
Jason E. Epstein, Esq. (for respondent)
218 Avery Place
Cedarhurst, NY 11516
Edward W. McCarty III, J.
Before the court is an account filed by the executor of the estate of Anna Sturiale, who died on November 24, 2011.
BACKGROUND
The decedent's will, dated August 29, 2003, divides her estate equally between her two daughters, Grace Lopez and Joanne Wilson ("Grace" and "Joanne"). Joanne's daughter, Tiffany Joosten ("Tiffany"), is named as executor of the estate. The will was admitted to probate and letters testamentary issued to Tiffany on February 14, 2012.
The account covers the period from November 24, 2011 through October 26, 2012 and reflects total charges in the amount of $269,634.37, with $226,584.85 on hand. An affidavit dated April 26, 2013 bringing the account down to date shows total charges of $270,375.48 and a balance on hand of $222,755.96, with Schedule C-1 expenses of $11,785.37 (executor's commissions) and $2,982.50 (unpaid legal fees).
A notice of appearance was filed on behalf of Grace in connection with this proceeding. Counsel for Grace conducted an examination of the executor pursuant to SCPA 2211 on April 4, 2013. On April 29, 2013, counsel for Grace sent an original and one copy of the deposition transcript to counsel for the executor. To date, no objections to the account have been filed.
Counsel for the executor settled a decree on notice for May 7, 2013.
Counsel for Grace filed an affirmation in opposition to the notice of settlement of the executor's account, requesting that the notice of settlement be dismissed to allow for the proper completion of discovery under SCPA 2211, plus ten days for the objections to be filed from the termination of discovery. He asserts that discovery cannot have been terminated without a signed deposition transcript or the elapsing of 60 days without the witness signing the deposition transcript.
Counsel for the executor filed an affidavit in support of petitioner's notice of settlement [*2]and in reply to the affirmation in opposition of respondent. Counsel argues that objections to the account were due no later than April 14, 2013, which was 10 days after counsel for Grace conducted the 2211 examination on April 4, 2013. He maintains that the sending of the deposition transcript is not relevant to the requirement that objections be filed within 10 days of the conclusion of the examination and that if objections are not timely filed, then the matter is concluded and the decree can be noticed for settlement. Counsel further notes that his opponent did not file an affidavit of reasonable excuse for not filing timely or an affidavit of merit, and counsel asks the court to execute the decree.
ANALYSIS AND CONCLUSION
The court directs the date by which objections must be filed. While some courts direct that the time for filing objections is 10 days after the transcript is filed, other courts direct that objections must be filed within 10 days after the SCPA 2211 examination has been completed (Turano & Radigan § 6.03 [b] at 244 [2013 ed]). SCPA 302 (1) (c) provides, "Unless otherwise provided in this act [a]n answer or objection shall be served upon the return of process or at such later date as directed by the court." Rule 207.41 of the Uniform Surrogate's Court Rules provides in part that "[o]n any accounting by an executor, administrator, temporary administrator, guardian, or trustee, any creditor or any other party interested may file objections thereto in writing within such time as shall be allowed by the Surrogate" (22 NYCRR 207.41).
The custom in this court has been to require that objections be filed within 10 days of the conclusion of the examination pursuant to SCPA 2211 or as the parties otherwise agree. However, even where objections are late "the court may extend [respondent's] time to plead on such terms as may be just and upon a showing of reasonable excuse for delay or default' (CPLR 3012 [d])" (Matter of Thomajan, NYLJ, Mar. 16, 2009, at 29, col 2 [Sur Ct, New York County]).
In addition to the court's consideration of extending the date by which to file objections based upon respondent's misunderstanding of this court's customary deadline, the court sua sponte notes an additional basis for granting respondent additional time in which to object to the account. Schedule C of the accounting as originally filed reflects legal fees paid to two different law firms in the total amount of $18,926.25. Schedule C-1 of the accounting does not reflect any unpaid legal fees and the relief requested does not ask the court to approve legal fees.
However, the affidavit bringing the account down to date indicates that additional legal fees totaling $3,775.00 were paid, plus disbursements of $795.00. The affidavit shows additional unpaid fees of $2,982.50, bringing all of the legal fees, paid and unpaid, to a total of $25,683.75, or nearly 10% of the gross estate. The affidavit is dated April 26, 2013 and it was served by mail on opposing counsel 12 days after the date which petitioner asserts was the deadline for filing objections. This means that Grace was not given timely notice of all of the paid and unpaid legal fees nor an opportunity to object to these fees.
Counsel for the executor is directed to file a supplemental citation which sets forth all of the legal fees, both paid and unpaid, along with affidavits of legal services from both law firms which provided services to the executor, for review by the court. 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 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]). [*3]
On the return date of the citation, a scheduling conference will be held, at which time the court will set a deadline for the filing of objections.
This constitutes the decision and order of the court.
Dated: August 28, 2013
Edward W. McCarty III
Judge of the
Surrogate's Court
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