Opinion
Index No. 130821-I-2013
01-12-2023
In the Matter of the Final Account of Emily F. Francina, ESQ., AS SUCCESSOR PROPERTY GUARDIAN FOR THE PRPOERTY OF Angelina M., AN INCAPACITATED PERSON, now deceased
Andrew Turro - Petitioner's Counsel. Andrew Levitt - Petitioner's Counsel. Avrohom Gefen - Personal Needs Guardian Counsel. Danielle Marlow - Fred M.'s Counsel. Nancy Hampton - Fred M.'s Counsel. Michael Calcagni - Fred M.'s Counsel. Jarrett Roth - Mark M.'s Counsel. Anthony Cannatella - Mark M.'s Counsel.
Unpublished Opinion
Andrew Turro - Petitioner's Counsel.
Andrew Levitt - Petitioner's Counsel.
Avrohom Gefen - Personal Needs Guardian Counsel.
Danielle Marlow - Fred M.'s Counsel.
Nancy Hampton - Fred M.'s Counsel.
Michael Calcagni - Fred M.'s Counsel.
Jarrett Roth - Mark M.'s Counsel.
Anthony Cannatella - Mark M.'s Counsel.
GARY F. KNOBEL, J.
Upon the foregoing papers, and after a mediation and extensive hearing, the motion by the Successor Guardian of the Property Management needs of Angelina M., now deceased, for an order settling the final account proposed by the Successor Guardian, is granted to the extent directed below.
This guardianship proceeding has been in essence a very contentious sibling rivalry from its inception. The motion to settle the final account of Angelina M., an incapacitated person who had passed away in February of 2021, has turned out to be no different. Two children of Angelina M., Fred and Angela, objected to the final account submitted by Emily F. Franchina, the Court-appointed Successor Guardian for the Property, and challenged the amount of her requested compensation. Under these circumstances a hearing was ordered to be held; the Court subsequently directed that a mediation take place under the auspices of the Nassau County Bar Association. The mediation failed, and eventually another hearing date was scheduled. The hearing took place over the course of seven days.
The hearing raised the repetitive thorny issue of the amount of reasonable compensation to award to a guardian who is a practicing attorney. It is difficult for guardianship judges to find highly qualified and experienced attorneys to be guardians in contested, or even uncontested, proceedings. Part of the reason for this unfortunate circumstance is that judges and appellate courts, in the opinion of attorney guardians, do not award the attorney guardian sufficient compensation that reflects their legal training, years of experience, expertise and knowledge that they apply for the benefit of the incapacitated person (see, Matter of Vincent V. [Isler], 187 A.D.3d 764, 766 [2nd Dept. 2021]).
"A court is authorized to award 'reasonable compensation' to a guardian of the person or property of an incapacitated person for services rendered in caring for the personal needs and managing the property of the incapacitated person (Mental Hygiene Law § 81.28(a); see, Matter of Eggleston [Jennifer D.], 88 A.D.3d 706, 706 [2011]), and it is within the court's discretion what, if any, compensation is due such a fiduciary (see, Matter of Joshua H. [Grace N.], 80 A.D.3d 698, 699 [2011]" In re Hyman, 102 A.D.3d 683, 684 [2nd Dept. 2013]). Moreover, "[t]he Mental Hygiene Law does not provide any formula or guideline for the court to follow in setting compensation for an article 81 guardian.... [t]he only requirement is that the court 'must take into account the specific authority of the guardian or guardians to provide for the personal needs and/or property management for the incapacitated person, and the services provided to the incapacitated person by such guardian'"(Matter of Goldstein v. Zabel, 146 A.D.3d 624, 629 [1st Dept. 2017], quoting Mental Hygiene Law § 81.28). This is because oftentimes it is difficult to predict at the inception of a guardianship proceeding the full extent of the work to be performed or the services the guardian will be called upon to provide A court may choose to compensate a [temporary] guardian in quantum meruit, using an hourly rate" (Zabel, at 629-630). In sum, "[a] court should fix a temporary guardian's compensation "so that it provides the person appointed with reasonable compensation, but not a windfall at the [allegedly] incapacitated person's expense" (Matter of Vincent V. [Isler] supra at 766, quoting Matter of Goldstein v Zabel, 146 A.D.3d at 630).
The Supreme Court has broad discretion in determining the reasonable amount to award to court appointees pursuant to Article 81 of the Mental Hygiene Law. This determination must be supported by a clear and concise explanation for its award in a written decision (see, In re Zofia L., 136 A.D.3d 818, 821, 26 N.Y.S.3d 95 [2nd Dept. 2016]; Matter of Alice D. [Lupoli], 113 A.D.3d 609, 979 N.Y.S.2d 77 [2nd Dept. 2014]; In re Marion C.W., 83 A.D.3d 1089, 1093, 923 N.Y.S.2d 558 [2nd Dept. 2011]; Matter of Theodore T. [ Charles T. ], 78 A.D.3d 955, 957, 912 N.Y.S.2d 72 [2nd Dept. 2010]; Matter of Catherine K., 22 A.D.3d 850, 803 N.Y.S.2d 193 [2nd Dept. 2005]). Determining an attorney's reasonable compensation should not be limited to the mere services rendered, but the specific circumstances and situations affecting the attorney's duties must also be duly considered (see, In re Potts' Est., 213 A.D. 59, 62 [4th Dept 1925], aff'd sub nom. In re Potts, 241 NY 593 [1925] ["the real value of an attorney's services may be the result of his thought about the legal questions involved, while away from his office, at home, or elsewhere."]). "[T]he fixation of lawyers' fees [is] to be determined on the following factors: time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved" (Matter of Freeman, 34 N.Y.2d 1, 9 [1974]). What is not included in the Court of Appeals' factors, nor is the trial court mandated to consider, is the size of the guardianship estate and whether the incapacitated person is deceased.
When a party objects to a final accounting the moving party bears the initial burden of presenting evidence that establish that the amounts set forth are inaccurate or incomplete (Matter of Shauntray T. [Margaret T. ], 176 A.D.3d 719 [2nd Dept. 2019]; see also, Matter of Campione, 58 A.D.3 1032, 1034 [2009]). When the dispute concerns the necessity of disbursements, reasonableness of fees, or management of assets, a hearing should be held (id.; Matter of George P. [ Sherwood ], 83 A.D.3d 1079 [2011]). Once a party has met the initial burden, the accounting party must prove by a "preponderance of the evidence that the accounting is accurate and complete" (id.; see also, Matter of Digiovanna, 148 A.D.3d 699, 700 [2017]).
Emily Franchina is one of the leading guardianship and elder law attorneys in New York State. Ms. Franchina was admitted to practice law in June 1990 and practices in the areas of Elder Law, Wills, Trusts, Estates, and Adoption. Ms. Franchina has served as President of the Nassau County Bar Association, and was the former chair for the Nassau County Bar Association's Committee on Elder Law. She is a member of the New York State Bar Association's Elder Law Committee, a former chair of the Long Island Alzheimer's Foundations Legal Advisory Board, and a member of the National Academy of Elder Law Attorneys. During her career she has served as a guardian for many individuals in the community and in long term care facilities, has served as a Court Evaluator, Court appointed Counsel, and Court appointed Guardian in numerous guardianship proceedings.
In the instant matter, Ms. Franchina was appointed in August of 2019 as Successor Property Guardian. Ms. Franchina was the sole witness at the hearing, where she was subject to direct and cross examination over the course of seven days. During the hearing it was established that Ms. Franchina's responsibilities included settling owed and accruing state and federal income tax deficiencies over one million dollars, managing over ten properties, monthly care expenses for the incapacitated person of $25,000.00, and a lack of liquid assets. At the time the predecessor guardian was discharged in January of 2020, and Ms. Franchina become the Successor Property Guardian, there was less than seven thousand dollars ($7,000.00) in the guardianship account.
Ms. Franchina was required to perform extraordinary work, especially in view of the challenges of becoming Successor Guardian right before the COVID-19 pandemic and dealing with a dysfunctional family. During her time as guardian, Ms. Franchina was able to pay the entirety of the owed state income tax through the sale of Angelina M.'s properties and was working towards selling other properties to satisfy the federal taxes owed but was unable to prior to Angelina M.'s death. Resolving the state income tax issue removed the burden of a $17,000.00 per month payment plan that was in place. Another example of her exemplary work is that during the pandemic, the guardianship rental properties managed to turn a profit. Additionally, she was able to secure a payment plan with the IRS, increased Angelina M.'s social security payments, reviewed monthly reports from the court appointed property manager and consulted with him, and oversaw renovations of the properties. As to Angelina M.'s living and care situation, Ms. Franchina came to an agreement with Angelina M.'s nursing facility to continue her care despite the facility having received no payments at the time. Further, the facility agreed to continue treatment and established human contact and extra care to Angelina M. This occurred during the early stages of the pandemic which brought a unique set of problems like fluctuating procedures and regulations, uncertainty of resources, increased demand for healthcare workers, and many institutions transitioning to remote/virtual work. These are just some of the actions taken by Ms. Franchina during this time.
Ms. Franchina submitted a detailed Final Accounting that contained numerous entries for all payments and expenditures. Although the objectants extensively questioned Ms. Franchina about her accounting, she calmly explained every query and accusation through her recollection and thorough reports. Specifically, Ms. Franchina provided a detailed billing record breaking down each task that was conducted on each day, who completed the work, how long it took, and proposed fee charged. The time spent by Ms. Franchina, as demonstrated by the detailed billing records provided, is commensurate with the complexity and seriousness of the numerous issues faced, and the favorable result obtained by Ms. Franchina and her advisors' work.
In Ms. Franchina's affirmation of guardian services she details the hours she has worked and her law firm's rates. The rates are as follows: $450.00 per hour for principal attorneys; $350.00 per hour for counsel and associate attorneys; $275.00 per hour for law graduates; $195.00 per hour for paralegal time; 180.00 per hour for a legal assistant; and $90.00 per hour for an assistant. Attorneys who have similar status and guardianship experience charge between $400.00 and $500.00 per hour for their services in Nassau County, if not more. (see, Matter of Parente (T.U.), 48 Misc.3d 347, 5 N.Y.S.3d 716, 723 [County Ct. 2015]; see also Matter of Astor, 14 Misc.3d 1201 [A], 831 N.Y.S.2d 360 (Sup. Ct. NY County 2006) [capping fees at $450.00 per hour where attorney rates varied from $350.00 to $825.00 per hour]).
The Court notes that the initial Referee's report was withdrawn because of the hearing, and the report stated that this was an extremely complicated financial guardianship based on the real estate holdings involved. His evaluation concluded that all accounts were marshaled or reflected in the final account and that all the income and changes to the principal were accounted. The Referee additionally recommended the Court award an appropriate fee to the Successor Property Guardian based on her affirmation of services as Guardian and her affidavit of extraordinary services. The Referee reiterated this on the record during the hearing.
The Referee Report submitted on July 28, 2021, was withdrawn with a letter sent to the Court on August 9, 2021. The letter from the Referee explained that he withdrew the report because of the Court ordered hearing regarding the Opposition to the Final Accounting and that a new report would be issued after a decision was rendered.
This Court finds that the objectants did not meet their burden of demonstrating that the amounts presented in the final accounting are incomplete or inaccurate. Furthermore, it is clear, based upon the preponderance of the evidence adduced at the hearing, that Ms. Franchina's final account is complete and accurate and that her fee request is reasonable given the difficult circumstances she was constantly presented with, and the positive results obtained for the benefit of Angelina M.
Accordingly, the Court finds that Ms. Franchina's fees and disbursement requests are reasonable under the circumstances given the extraordinary work required under the conditions in which she came to be the Successor Guardian and the quality and extent of services provided to Angelina M. during her tenure as Successor Property Guardian. Consequently, Emily Franchina, Esq., as Successor Property Guardian, is awarded the sum of $117,133.20 for 333.43 hours of professional services. The breakdown of each year is as follows: (1) $27,106.95 for 77.03 hours of work in 2019; (2) $32,160.00 for 82.9 hours of work in 2020; (3) $32,160.00 for 82.9 hours of work in 2021; and (4) $25,706.25 for 90.6 hours of work for the final accounting.
The affirmation of guardian services lists a total of 82.5 hours of work totaling $83,965.00. However, it then states that 53.50 hours were principal attorney time and 29.40 were law graduate hours. The corrected total hours would be 82.9. The rates provided were used to calculate the total amount for 2020 which was $32,160.00.
Ms. Franchina is further ordered to file an updated final accounting with supplemental affirmation of services within thirty (30) days. Mr. Levy is ordered to file an amended referee report with a proposed order settling the updated final account. All parties and counsels seeking compensation shall submit supplemental affirmation of services within ten (10) days of service of the amended referee report.
The foregoing constitutes the decision and order of this Court.