Cite as: Estate of Joseph Adams. 1729P2002/C, NYLJ 1202585978885, at *1 (Surr., SUF, Decided July 31, 2012)

Surrogate John M. Czygier

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Decided: July 31, 2012


Attorney for Petitioner: Neil J. Roher, Esq., Garden City, NY.

Attorney for Respondent: Miriam Davidson, Esq., New York, NY.




In this contested accounting proceeding, the parties have settled their differences by way of a written stipulation filed with the court. As part of the settlement, the parties have agreed to submit two issues to the court for determination, namely the reasonableness of petitioner's counsel's fees and whether respondent's attorney's fees should be an expense of the estate. Pursuant to the parties' agreement, both issues are to be decided upon the papers submitted in connection therewith.

Jurisdiction has been obtained over all necessary parties to this proceeding. With the parties reaching a settlement, the sole issues to be decided by the court concern compensation of counsel for petitioner and respondent.

The burden of proof is on the attorney to establish both the reasonableness and the value of services rendered (see Matter of Potts, 123 Misc 346, 205 NYS 797, aff'd 213 AD 59, 209 NYS 655, aff'd 241 NY 593). The criteria generally utilized in such determination are the time spent, the difficulties involved in the matter, the nature of the services rendered, the size of the estate, the professional standing of counsel, and the




results obtained (see Matter of Freeman, 34 NY2d 1; Matter of Potts, supra). The determination of reasonable compensation rests within the sound discretion of the court regardless of the terms of any retainer agreement (see Matter of Gluck, 279 AD2d 575).

In reaching its determination, detailed contemporaneous time records are an important vehicle through which counsel validates the time claimed (see Matter of Kelly, 187 AD2d 718), and in the absence of same it is left to the undersigned's discretion to determine what would constitute a reasonable amount of time to perform the services (see Matter of Phelan, 173 AD2d 621). Time spent by counsel, however, is only one factor to be considered in determining reasonable compensation (see Matter of Kentana, 170 Misc 663), often serving as an appropriate starting point (see Estate of Gillett, 139 Misc2d 188).

In reviewing the record, including the submissions of counsel, Neil Roher, Esq. was retained by the executor in June of 2010, although the only retainer agreement submitted in connection with this accounting is dated November 22, 2011, more than seven years after this estate was established. By that point in time, it appears that many of decedent's assets were marshaled and administered, leaving only the sale of some real property and the expenses related thereto and negotiations between the parties in an effort to avoid formal litigation. Overall, but for recent litigation involving the underlying accounting, attempts to settle this estate informally and some issues concerning the marketability of decedent's real property, the administration of this estate appears to have been quite routine. Having noted these facts, it appears that counsel spent more than 200 hours rendering services to the executor from the period of June of 2010 through the present. A review of his affirmation and time records reveals that many hours were spent in connection with negotiating a settlement prior to the filing of instant accounting, communicating with various parties concerning the administration of the estate, preparing for and participating in conferences between counsel for the respective parties, as well as with the court, and participating in further settlement negotiations that ultimately resolved many of the issues raised in this proceeding. Further, the court must also




consider the fact that at times it appears respondent has pursued a course of conduct which has resulted in inevitable consequences, namely additional legal fees, for which petitioner's counsel should not be penalized (see Matter of Colangelo, NYLJ, Sept. 7, 2006, 31, [col. 3]).

After careful consideration of all relevant factors, including that this estate is bearing the expense of petitioner's former counsel (see Matter of Mattis, 55 Misc2d 511) and having considered respondent's opposition papers, the court fixes and determines the fair and reasonable value of services rendered and to be rendered the estate to be $52,500 (see Matter of Freeman, supra; Matter of Potts, supra).

With respect to respondent's counsel's fees, pursuant to the above mentioned agreement, the parties agreed that respondent's counsel's application pursuant to SCPA 2110 to fix and determine reasonable compensation for services rendered and why same should be paid by the estate would be determined within the context of this accounting. In furtherance thereof, counsel for respondent has submitted her supporting papers and petitioner's counsel has filed opposing papers.

Generally, a party is not entitled to recover attorney's fees from an opposing party (see Matter of Rothko, 84 Misc2d 830), as the same are considered incidents of litigation (see A.G. Ship Maintenance Corp. v. Lezak, 69 NY2d 1). In instances were the court has found that a contestant's legal fees are chargeable against the estate, the court has determined that the services rendered benefitted the estate as a whole, not merely the contestant (see Matter of Smith, 167 Misc 95). To prevail, the contestant must establish the benefit inuring to the estate in clear and convincing fashion (see In re Cannariato's Estate, 159 Misc 409).

Here, the parties were engaged in settlement discussions prior to commencing this recent litigant. Although this litigation may have ultimately forced the parties to reconsider their respective positions and the costs of going forward, it cannot be said that same has benefitted the "estate" as a whole (see In re Ricca, 55 AD3d 838; Matter of Scarsella, 195 AD2d 513). The estate has not been enlarged in any significant way,




as the other interested parties, who defaulted, have not nor will they benefit from the litigation herein. In fact, the legal fees and other expenses incurred by the estate in defense of this action actually diminished the respective shares of these beneficiaries.

Further, the parties' settlement, like most, results from the parties allocating and assessing the risk and uncertainty of going to trial with the certainty and finality of settling. While that is not to say that in a proper case the court could not award legal fees where a matter is settled prior to trial, there have been no factual findings of wrongdoing or conversion of assets by this fiduciary.

Accordingly, respondent's application for the payment of legal fees from the estate is denied. As the terms of the stipulation provide that the reasonableness of respondent's counsel's fee shall only be determined by the court in the event the same is chargeable against the estate, the remainder of the application is dismissed.

Accordingly, petitioner's account is hereby judicially settled as submitted and modified by the parties' agreement and the determination made herein.

Settle decree.