Surrogate John Riordan (Nassau County) Discusses Fees For a Guardian Ad litem

Matozzo v DeMarco

2010 NY Slip Op 33643(U)
December 21, 2010
Surrogate's Court, Nassau County
Docket Number: 346690/B
Judge: John B. Riordan

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SURROGATE’S COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

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Christina Matozzo, as Administrator of the Estate of

VITO DeMARCO,

File No. 346690/B

Deceased,

Dec. No. 26975

-against-

Anthony DeMarco, as Trustee of the Vito DeMarco

Living Trust, to Declare the Trust Invalid.

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Probate Proceeding, Will of

File No. 346690/D

VITO DeMARCO,

Dec. No. 26976

Deceased.

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Accounting of Anthony DeMarco, as Trustee of the

Vito DeMarco Living Trust, Estate of

File No. 346690/E

VITO DeMARCO,

Dec. No. 26977

Deceased.

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There are three proceedings pending in the estate of Vito DeMarco: (1) a miscellaneous proceeding to declare the Vito DeMarco Living Trust dated March 19, 2001 invalid; (2) a proceeding to probate an instrument dated March 19, 2001 as the decedent’s last will and testament; and (3) a proceeding by Anthony DeMarco, as trustee of the Vito DeMarco Living Trust dated March 19, 2001, to judicially settle his account for the period from March 19, 2001 to May 9, 2007. On July 1, 2010, the court appointed a guardian ad litem for Mary LoCicero, one of the decedent’s daughters, in all three proceedings.

The decedent died on May 9, 2007, survived by four distributees: two daughters, Christina Matozzo and Mary LoCicero; a son, Anthony DeMarco; and a granddaughter, Valerie [* 1] DeMarco, the only chid of the decedent’s predeceased son, Joseph DeMarco. The propounded will pours over to the living trust. The living trust provides only for Anthony, specifically omits Christina and Mary, and does not mention Valerie.

The guardian ad litem has filed a preliminary report in which he details his findings to date and, based upon them, recommends that he continue to represent his ward’s interests in all three proceedings. The guardian ad litem reports that Christina Matozzo has alleged that Anthony DeMarco exerted undue influence and fraud upon the decedent at a time when he was physically ill and depressed. The guardian ad litem states that, based on his investigation, he deems it appropriate to participate in the SCPA 1404 examinations in the probate proceeding and to continue to represent his ward’s interests in all three proceedings. The court agrees with his conclusions.

The guardian ad litem has asked the court to award an interim fee for the services he provided through the filing of his preliminary report. 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 the administration 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 [2d Dept 1991]). This applies to the fee of a guardian ad litem (Matter of Carbone, NYLJ, Oct. 26, 1995, at 36, col 3 [Sur Ct, Suffolk County]).

While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily” (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of [* 2] Wilhelm, 88 AD2d 6, 11-12 [4th Dept 1982]). In evaluating the cost of legal services, the court may consider a number of factors. These include the time spent (Matter of Kelly, 187 AD2d 718 [2d Dept 1992]); the complexity of the questions involved (Matter of Coughlin, 221 AD2d 676 [3d Dept 1995]); the nature of the services provided (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]); the amount and complexity of litigation required (Matter of Sabatino, 66 AD2d 937 [3d Dept 1978]); the amounts involved and the benefit resulting from the execution of such services (Matter of Shalman, 68 AD2d 940 [3d Dept 1979]); the lawyer's experience and reputation (Matter of Brehm, 37 AD2d 95 [4th Dept 1971]); and the customary fee charged by the Bar for similar services (Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 241 NY 593
[1925]).

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts (241 NY 593 [1925]), as re-enunciated in Matter of Freeman (34 NY2d 1 [1974]) (see Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]). Also, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem (Matter of McCranor, 176 AD2d 1026 [3d Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]; Martin v Phipps, 21 AD2d 646 [1st Dept 1964], affd, 16 NY2d 594 [1965]; Matter of Ault, 164 Misc 2d 272 [Sur Ct, New York County 1995]). Moreover, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable
compensation (see Matter of Snell, 17 AD2d 490, 494 [3rd Dept 1962]; Matter of Potts, 213 App
3 [* 3]

Div 59, 62 [4th Dept 1925], affd 241 NY 593 [1925]; Matter of Kentana, 170 Misc 663 [Sur Ct,
Kings County 1939]).

A sizeable estate permits adequate compensation, but nothing beyond that (Matter of Martin v Phipps, 21 AD2d 646 [1st Dept. 1964], affd 16 NY2d 594 [1965]; Matter of Yancey, NYLJ, Feb. 18, 1993, at 28, col 1 [Sur Ct, Westchester County]; Matter of Reede, NYLJ, Oct. 28, 1991, at 37, col 2 [Sur Ct, Nassau County]). A large estate does not, by itself, justify a large fee (Matter of Young, 52 Misc 2d 398 [Sur Ct, Suffolk County 1966]). Further, the size of the estate can operate as a limitation on the fees payable (Matter of McCranor, 176 AD2d 1026 [3d Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]), without constituting an adverse reflection on the services provided.

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

The guardian ad litem is entitled to a fee for his or her services rendered (SCPA 405).

The nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee (Matter of Ziegler, 184 AD2d 201 [1st Dept 1992]). Normally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets. The guardian ad litem has filed an affirmation of legal services in which he states that he dedicated 12 hours of time to these proceedings. His time included reviewing the three court 4 [* 4] files, meeting with one of the parties, communicating with the other parties’ attorneys, preparing correspondence, locating the witnesses to the propounded will, and preparing his preliminary report. The guardian ad litem, who is an experienced attorney, informs the court that his usual hourly billing rate is $350.00. Based on the criteria set forth above, the court fixes the guardian
ad litem’s fee at $4,200.00, said fee to be paid within 30 days of entry of the decree of probate.

This decision constitutes the order of the court.

Dated: December 21, 2010

JOHN B. RIORDAN
Judge of the Surrogate's Court


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