Matter of Valk
Annotate this CaseDecided on September 24, 2013
Sur Ct, Nassau County
In the Matter of the Guardianship of Jacob Daniel Valk, a disabled infant.
357627/A
The Law Offices of
Penny B. Kassel, P.C.
100 Ring Road, Suite 108
Garden City, NY 11530
Edward W. McCarty III, J.
Before the court is counsel's motion seeking to be relieved as counsel for Martin E. Valk [petitioner/guardian/trustee] and seeking reargument with respect to a portion of the court's decision [No.28407] and order dated February 28, 2013 to the extent that it states that "to the extent that the guardian/trustees have paid counsel more than this amount [$8,500.00], the excess should be refunded by counsel". The guardian/trustee and payor of counsel's legal fees pursuant to a written retainer agreement, has interposed a response consenting to counsel's withdrawal and objecting to reargument. Counsel's motion for leave to withdraw is granted on consent.
As to the balance of the relief sought, a motion for leave to reargue is governed by CPLR 2221. A motion to reargue is not based on any new facts, but seeks to convince the court that it overlooked or misapprehended the facts or the law on the prior motion (CPLR 2221[d]). It is a basic principle that a movant on reargument must show that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (Andrea v du Pont de Nemours & Co., 289 AD2d 1039 [4th Dept 2001]; Bolos v Staten Is. Hosp., 217 AD2d 643 [2d Dept 1995]; Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]). A motion to reargue is not to be used as a means by which an unsuccessful party is permitted to argue again the same issues previously decided (William P. Pahl Equip. Corp. v Kassis,182 AD2d 22 [1st Dept 1992]; Pro Brokerage v Home Ins. Co.,99 AD2d971 [1st Dept 1984]). Nor does it provide an unsuccessful party with a second opportunity to present new or different arguments from those originally asserted (Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737 [2d Dept 2006]; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388 [2d Dept 2005]; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434 [2d Dept 2005]; Amato v Lord & Taylor Inc., 10 AD3d 374 [2d Dept 2004]; Frisenda v X Large Enters., 280 AD2d 514 [2d Dept 2001]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Nevertheless, "[i]t is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" (Peak v Northway Travel Trailers, 260 AD2d 840, 842 [3d Dept 1999]).
Counsel posits that the court overlooked or misapprehended pertinent case law precedent in reaching its earlier determination. The cases relied upon by counsel essentially stand for the [*2]proposition that the petitioner in a Mental Hygiene Law Article 81 proceeding may be personally liable to his attorney for legal fees beyond those which the court awards from the guardianship estate. In those cases, the court, with an eye to protecting the funds of the incapacitated person, awarded a fee from the guardianship estate at a sum lesser than what might be deemed a reasonable fee for the services provided. This is especially true of the holding in Seth Rubinstein P.C. v Ganea (41 AD3d 54 [2d Dept 2007]) where the court held that "[a]n award of fees under Mental Hygiene Law § 81.16 (f) is discretionary and based upon a variety of factors, with the paramount consideration' being the best interests of the AIP" (Seth Rubinstein P.C. v Ganea, 41 AD3d 54, 64-65 [2d Dept 2007]). The court went on to hold that where an attorney representing a petitioner in an Article 81 case claims he is entitled to a fee greater than that awarded by the court to be paid from the funds of the incapacitated person, "[the attorney] bears the burden of establishing that he reached a clear agreement with [the client] that she would be responsible for fees incurred in the guardianship proceeding, including the amount that the fair value of legal services exceeds the amount awarded by the guardianship court" (Seth Rubinstein P.C. v Ganea, 41 AD3d 54, 65 [2d Dept 2007]) (emphasis added).
Even if the holdings in Rubinstein and the other cases cited by counsel were applicable to cases other than Article 81 proceedings, which the court finds they are not, the cases are clearly distinguishable from this court's prior decision in this case. This court in its prior decision was careful to list the many criteria that the court uses in determining a reasonable fee for services provided by an attorney. Although this court's prior decision did mention the size of the trust estate as a factor to consider, it is only one of many and protection of that fund is not the "paramount consideration" that guides Article 81 courts in fixing fees. The prior decision in this case also expressly noted that the fees requested by counsel in this case "are significantly higher than those customarily charged for work of this nature." Thus, unlike in Rubinstein where the attorney was given leave to seek an additional fee equal to the amount by which the "fair value of legal services exceeds the amount awarded by the . . . court," here the court has already determined the fair value of the legal services provided and awarded a fee in that amount. There is, therefore, no amount by which the fair value of counsel's services in this case exceed the amount awarded because the amount awarded is the fair value of the legal services provided. The court also notes that in this case counsel's time records reflect many hours spent in preparing and revising the supplemental needs trust instrument, which is a nearly verbatim copy of the model form which has been distributed by this court for many years.
For the foregoing reasons, the motion for reargument is denied.
This decision constitutes the order of the court and no additional order need be submitted.
Dated: September 24, 2013
EDWARD W. McCARTY [*3]
Judge of the
Surrogate's Court
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