Matter of DiLoreto

[*1] Matter of DiLoreto 2013 NY Slip Op 51421(U) Decided on August 29, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2013
Sur Ct, Dutchess County

ACCOUNTING BY SHIRLEY M. LAPIDUS as the Executor of the Estate of Guerino DiLoreto Deceased.



ACCOUNTING BY SHIRLEY M. LAPIDUS as the Successor Trustee of the Guerino DiLoreto, Jr. Revocable Trust U/A dated September 13, 2005 as Amended on February 1, 2007



2001-99916/C



REBECCA M. BLAHUT, ESQ.

McCABE & MACK, LLP

Attorneys for Petitioner/Estate-Trust

63 Washington Street

P.O. Box 509

Poughkeepsie, New York 12602-0509

JOHN C. WIRTH, JR., ESQ.

Guardian ad Litem

Klein, Varble & Associates, P.C.

235 Main Street, Suite 300

Poughkeepsie, New York 12601

James D. Pagones, J.

On September 13, 2005, Guerino DiLoreto, Jr. ("decedent") executed a will and the Guerino DiLoreto, Jr. Revocable Trust Agreement. The trust was subsequently amended on February 1, 2007.

The decedent died on May 24, 2011. His will was admitted to probate on July 8, 2011. It leaves the entire estate to the Revocable Trust. Shirley Lapidus, a friend of the decedent, serves as Executrix under the will and trustee of the trust. The beneficiaries under the trust are the decedent's daughter, Virginia C. (50%), and her two children (decedent's grandchildren), R.C. (25%) and B.C. (25%).

On December 21, 2012, Shirley Lapidus filed a petition to judicially settle her final [*2]account as executrix and a separate petition to judicially settle her intermediate account as trustee. As of September 14, 2012, the estate was worth $374,216.40 and the trust $532,267.50.

The beneficiary B.C. was 17½ when the accountings were filed. Attorney John C. Wirth, Jr. was appointed his guardian ad litem ("GAL"), pursuant to SCPA §402, on December 21, 2012.

The GAL engaged in pre-objection discovery. A disagreement arose between the GAL and the attorney representing the accounting fiduciary over whether the GAL would continue his services as such when B.C. attained the age of majority. The issue was briefed, and on April 17, 2013, the Court issued an order directing the GAL to terminate his services as of June 7, 2013. (Guidelines for Guardian ad Litem, May 2003, Section III(E); Matter of Fassig, 58 Misc 2d 252, 254 [Sur Ct, Nassau County 1968].) He was further directed to file an affirmation of services. B.C. was afforded the opportunity to notify the Court on or before July 18, 2013 of his decision to obtain counsel or represent himself. (Matter of Naima, NYLJ, 11/02/1990, at 24, col. 6 [Sur Ct, Nassau County].)

Virginia C. has not filed objections to either accounting. Attorney Wirth did not file any objections on behalf of B.C. during the time he served as his GAL. By correspondence, dated July 10, 2013, attorney Wirth advised the Court that he had been retained by B.C. and R.C. for the purpose of conducting an examination of Shirley Lapidus as executrix/trustee and to file objections to her accountings. The former GAL filed his affirmation of services on June 12, 2013.

Attorney Wirth avers that he expended thirty-four (34) hours of work performed on behalf of B.C. as his GAL. He requests a fee of $8,500.00, which translates to $250.00 per hour. Counsel for the executrix/trustee outlined her client's concerns over the fee request in correspondence, dated July 3, 2013, suggesting in polite terms that the GAL engaged in unnecessary eristic posturing. Attorney Wirth waived his right to a hearing on the objections, responded to them in correspondence, dated July 26, 2013, and asks the court to determine what constitutes reasonable compensation for his services.

DISCUSSION

It is settled that the Surrogate bears the ultimate

responsibility of determining what constitutes reasonable attorneys' fees. (Matter of Stortecky v. Mazzone, 85 NY2d 518 [1995]; Matter of Massey, 73 AD3d 1179 [2d Dept. 2010].) The evaluation of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Surrogate, who is in a far superior position to judge those factors integral to the fixing of counsel fees. (Matter of Bobeck, 196 AD2d 496, 497 [2d Dept. 1993]; Matter of Nicastro, 186 AD2d 805 [2d Dept. 1992].) Additionally, on appeal from an order fixing the value of legal services, an award of counsel fees will not be disturbed unless it constitutes an abuse of discretion. (Matter of Wallace, 68 AD3d 679, 680 [1st Dept. 2009].)

In evaluating the cost of legal services, the court may consider a number of factors which include the time spent (see, Matter of Kelly, 187 AD2d 718 [2nd Dept 1992]; the relative difficulty of the questions involved (see, Matter of Middagh, 267 AD2d 593 [3rd Dept 1999]; Matter of Coughlin, 221 AD2d 676 [3rd Dept 1995]); the nature of the services performed (see, Matter of Van Hofe, 145 AD2d 424 [2nd Dept [*3]1988]); the amount and complexity of litigation required (see, Matter of Sabatino, 66 AD2d 937 [3rd Dept 1978]); the amounts involved and the benefit resulting from the execution of such services (see, Matter of Shalman, 68 AD2d 940 [3rd Dept 1979], appeal dismissed 48 NY2d 753 [1979]); the lawyer's experience and reputation (see, Matter of Brehm, 37 AD2d 95 [4th Dept 1971], and the customary fee charged by Bar for similar services (see, Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 241 NY 593 [1925]). It is well settled that the least important factor considered by a court in determining reasonable compensation is the time spent (see, Matter of Potts, 241 NY 593 [1925]; Matter of Snell, 17 AD2d 490 [3rd Dept 1962]). Indeed, the Surrogate is not obliged to accept at face value an attorney's summary of the hours expended. (Matter of Bobeck, supra, at 497.)

The fees of a guardian ad litem are determined on the same basis as those of counsel. (Matter of Milgrim, 2010 NY Slip Op 33690[U][Sur Ct Nassau County].)

The burden with respect to establishing the reasonable value of the legal services rendered is on the attorney performing such services (see, Matter of Spatt, 32 NY2d 778 [1973]; Matter of Potts, 241 NY 593 [1925]). Contemporaneous time records of legal time spent on estate matters are important in determining whether the amount of time spent was reasonable for the various tasks performed (see, Matter of Phelan, 173 AD2d 621 [2nd Dept 1991]; Matter of Van Hofe, 145 AD2d 424 [2nd Dept 1988]).

It is first observed that there is no dispute concerning attorney Wirth's experience and reputation. The suggested hourly rate of $250.00 is commensurate with what trusts and estates attorneys in Dutchess County currently charge. The typical range is $200.00 to $300.00 per hour.

The record indicates that the GAL has acknowledged the subject accountings are not complicated.[FN1] However, 5.5 hours were spent reviewing various records, including a title search on February 19, 2013 regarding the decedent's deed and mortgage documents. Neither document is related to the accountings. Three (3) hours were devoted to researching and drafting a memorandum of law addressed to the issue of the GAL's continued assignment once B.C. attained the age of eighteen. That effort had nothing to do with the subject accountings. As previously noted, the GAL engaged in pre-objection discovery without actually filing objections prior to the termination of his appointment. Neither B.C., nor the estate or trust, derived any discernable benefit during the GAL's tenure. B.C. and his brother R.C. have now elected to retain attorney Wirth as their private attorney to pursue potential litigation.

SCPA §405(1) provides the guardian ad litem shall receive reasonable compensation payable from any or all of the following, in such proportions as directed by the court:

(a) the estate,

(b) the interest of the person under disability, or [*4]

(c) for good cause shown, any other party.

Attorney Wirth did not render services to the estate or trust, but rather, to B.C. His actions did not benefit either entity. Indeed, the record is bereft of any suggestion that his efforts enlarged either one for the benefit of the beneficiaries. (Matter of Wallace, 68 AD3d 679, 681 [1st Dept. 2009].)

In light of the foregoing, the Court reduces the time spent by the GAL in providing legal services to his client as being more reflective of services necessarily connected to the purpose of his appointment to 27.10 hours at the rate of $200.00 per hour and fixes his fee at $5,420.00. The approved fee is to be paid entirely by the estate (SCPA §405[1][a]). The executrix is directed to remit payment within ten (10) days from the entry of the decree which is to be submitted hereon.

Counsel for the executrix/trustee is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.

The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

August 29, 2013

ENTER

HON. JAMES D. PAGONES, S.C.J. Footnotes

Footnote 1:Wirth Affirmation of Services, pg. 5