Matter of Honor
Annotate this CaseDecided on May 18, 2021
Surrogate's Court, Nassau County
In the Matter of the Accounting by Public Administrator of Nassau County, as the Administrator of the Estate of Joseph W. Honor, Deceased.
96764/C
Brian Curran, Public Administrator
Office of the Nassau County Public Administrator
240 Old Country Road
Mineola, New York 11501
Richard T. Kerins, Esq.
Mahon Mahon Kerins & O'Brien, LLC
254 Nassau Boulevard
Garden City South, New York 11530
Willis B. Carman, Esq.
Carman, Callaghan & Ingham, LLP
280 Main Street
Farmingdale, New York 11735
Attorney General of the State of New York
Charities Bureau
28 Liberty Street
New York, New York 10005
Lisa Rispoli, CPA
Grassi & Co.
50 Jericho Quandrangle, Suite 200
Jericho, New York 11753
Jasper Surety, as Agent for SureTec
Insurance Company
310 Old Country Road
Garden City, New York 11530
John C. Fisher, Esq.
For John Brooks and Patricia Gyrgo - Objectants 102 Park Place
Brooklyn, New York 11217
Robert Brooks
18 Sarah Court
Amityville, New York 11701
Margaret C. Reilly, J.
The following papers were considered in the preparation of this decision:
Petition and Exhibits 1
Account 2
Affirmation of Legal Services [Mahon] 3
Affidavit of Tax Services 4
Affidavit of Due Diligence 5
Report of Guardian ad Litem 6
Final Report of the Guardian ad Litem 7
Report of Referee, dated September 18, 2020 8
Before the court is the petition and account of the Public Administrator of Nassau County (petitioner) as the administrator of the estate of Joseph W. Honor (decedent). The petitioner prays that the account of proceedings be judicially settled: (1) releasing and discharging the Public Administrator from all liability, responsibility and accountability as to all matters set forth in the account of proceedings; (2) allowing the commissions of the Public Administrator in the amount of $8,338.46 pursuant to SCPA 2307 (1), and the reasonable and necessary expenses of the office in the amount of $1,834.61, pursuant to SCPA 1207 (4); (3) fixing and determining the attorney's fees of Mahon Mahon Kerins & O'Brien LLC, attorneys for the Public Administrator, in the amount of $26,710.00, of which $1,710.00 has been paid and $25,000.00 remains unpaid; (4) fixing and determining the accounting fees of Grassi & Co., CPA's, P.C., in the amount of $3,000.00, of which none has been paid; (5) releasing and discharging the surety; and (6) paying the balance to the alleged distributees of the decedent. A guardian ad litem (GAL) was appointed for missing and unknown distributees of the decedent and the court must fix his fee.
BACKGROUND
The decedent died intestate, a resident of Nassau County, on March 30, 2019. Letters of administration issued to the Public Administrator on June 30, 2017. Verified objections were filed and the objectants requested a kinship hearing. A kinship hearing was conducted on January 23, 2020, by Court Attorney Referee, Lesli P. Hiller, who recommended that the court find the decedent was survived by three maternal first cousins, to wit: Robert Brooks, Patricia Brooks-[*2]Grygo, and John Brooks. Pursuant to SCPA 506 (6), no motions to modify or overrule the report were filed and the report of referee was deemed confirmed, finding Robert Brooks, Patricia Brooks-Grygo, and John Brooks as the decedent's distributees.
ACCOUNT
The Public Administrator filed a petition for judicial settlement of his account. The account covers the period from June 2, 2017 through March 13, 2019. It shows that there were total charges of $183,461.19. The charges were reduced by funeral and administration expenses in the amount of $62,289.19, leaving a total balance on hand in the amount of $121,172.30.
REPORTS OF THE GUARDIAN AD LITEM
The GAL filed his report and final report. In his initial report the GAL reviewed the petition and found jurisdiction to be complete. He also reviewed the account of the petitioner and all of the schedules, and had no objections.
In his final report, filed after attending the kinship hearing, the GAL stated he found both of the witnesses that provided testimony to be credible and reliable. The GAL further concluded that the class of unknowns is closed, and that the objectant, John Brooks, and Patricia Brooks-Gyrgo, the decedent's first cousins, are the only distributees.FEES
"The Surrogate's Court bears the ultimate responsibility for deciding what constitutes a reasonable attorney's fee and the evaluation of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the court. In evaluating what constitutes a reasonable attorney's fee, factors to be considered include the time and labor expended, the difficulty of the questions involved and the required skill to handle the problems presented, the attorney's experience, ability, and reputation, the amount involved and the results obtained" (Matter of Goliger, 58 AD3d 732, 732 [2d Dept 2008] [internal quotation marks and citations omitted]; accord, Matter of Freeman, 34 NY2d 1, 9 [1974]; Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]). "In addition, the size of the net estate operates as a limitation in fixing the full value of the services rendered" (Matter of Morris, 57 AD3d 674, 675 [2d Dept 2008]).
A. Legal Fee of the Guardian Ad Litem
The court appointed Willis B. Carmen, Esq., as guardian ad litem (GAL) for the missing and unknown heirs. He reviewed the court file, and attended the kinship hearing. He also reviewed the account of the Public Administrator, and filed a report and a final report in which he found no objection to the accounting.
The GAL is entitled to a fee for services rendered (SCPA 405). Moreover, the nature of the role played by the GAL is an additional consideration in determining an appropriate fee (Matter of Ziegler, 184 AD2d 201 [1st Dept 1992]). The GAL spent a total of 16.5 hours on this matter. Considering all of the factors set forth above concerning attorneys' fees, the court fixes the fee of the GAL in the sum of $5,775.00.
B. Legal Fee for Counsel to the Public Administrator
Counsel to the Public Administrator has submitted an affirmation of legal services with time records which showed that he expended 87.25 hours of services which amounted to $29,500.00. Counsel also affirms that he anticipates spending six hours of additional attorney time at the rate of $550.00 per hour and five hours of additional paralegal time at the rate of [*3]$250.00 per hour, for a total of $4,550.00. Counsel, in his affirmation, seeks approval of the payment of $34,050.00, consisting of time expended to date and time anticipated, and $351.12 in disbursements for a total of $34,401.12. Notwithstanding the above, counsel seeks $26,710.00, the amount listed in the petition and citation in addition to disbursements in the amount of $351.12, for a total fee requested of $27,061.12, of which $1,710.00 has been paid.
The court has carefully reviewed the affirmation of services and the time records submitted to the court. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed (Matter of Phelan, 173 AD2d 621 [2d Dept 1991]). The services provided included identifying and locating decedent's distributees; searching for unknown distributees; identifying and collecting decedent's assets; preparing the final accounting, and attending the kinship hearing.
Considering all of the foregoing, the fee for counsel to the Public Administrator is approved in the amount of $26,710.00, plus disbursements of $351.12, for a total of $27,061.12, of which $1,710.00 has been paid and $25,351.12 remains unpaid.
C. Fee of the Administrator's Accountant
The court has also been asked to review the accountant's fees. The Public Administrator petitioned the court to approve a fee of $3,000.00.
"[A]ccountants' services are not compensable out of estate assets unless there exist unusual circumstances that require the expertise of an accountant" (Matter of Meranus, NYLJ, Mar. 31, 1994 at 28, col 2 [Sur Ct, Suffolk County] [citations omitted]). The fee for such services is generally held to be included in the fee of the attorney for the fiduciary (Matter of Musil, 254 App Div 765 [2d Dept 1938]). The purpose of this rule is to avoid duplication (Matter of Schoonheim, 158 AD2d 183 [1st Dept 1990]). "However, where unusual or complex circumstances require expertise beyond the generally recognized skills of an attorney, there is no duplication and the legal fee is not automatically reduced by the accounting fee" (Matter of Otto, NYLJ, Aug. 29, 2018 at 22, col 5 [Sur Ct, New York County] [citations omitted]).
The accountant has submitted an affidavit of services requesting a total fee of $2,200.00, of which $900.00 has been paid and $1,300.00 remains unpaid. The accountant states the unpaid amount represents additional services that will be necessary to prepare a return for the year ending November 30, 2020, and a final return. The court fixes the fee of the accountant in the amount of $2,200.00.
CONCLUSION
The account, as filed, is approved.
Within forty-five (45) days of the date of the issuance of this decision, counsel for
the Public Administrator shall file and serve an affidavit bringing the account down to date from the closing date of the account.
The petitioner is released from all liability, responsibility and accountability as to all matters set forth in the account of proceedings.
The commissions and expenses of the Public Administrator are allowed, subject to audit.
The attorneys' fees of Mahon Mahon Kerins & O'Brien, LLC, attorneys for the petitioner, are allowed in the amount of $26,710.00, plus disbursements of $351.12, for a total of $27,061.12, of which $1,710.00 has been paid and $25,351.12 remains unpaid.
Accounting fees are approved in the amount of $2,200.00, of which $900.00 has been paid and $1,300.00 remains unpaid.
The fee of the guardian ad litem is fixed in the amount of $5,775.00, to be paid within thirty (30) days of the date of this decision.
The surety is discharged.
The Public Administrator shall distribute the balance of the net estate, after payment of outstanding legal, accounting and guardian ad litem fees noted above, to John Brooks, Robert Brooks, and Patricia Brooks-Grygo, in accordance with EPTL 4-1.1 (a) (6).
The petitioner is directed to settle the decree within sixty (60) days after the date of this decision. Failure to settle the decree as directed may result in the proceeding being deemed as abandoned pursuant to 22 NYCRR 207.37.
Dated: May 18, 2021
Mineola, New York
E N T E R:
HON. MARGARET C. REILLY
Judge of the Surrogate's Court
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