Opinion
File 334736
09-23-2021
Probate Proceeding, Will of MURRAY NELSON, Deceased. Dec. No. 38713
Richard T. Kerins, Esq. Mahon, Mahon, Kerins & O'Brien LLC Bill P. Parkas, Esq. McCoyd, Parkas & Ronan LLP
Unpublished Opinion
Richard T. Kerins, Esq. Mahon, Mahon, Kerins & O'Brien LLC
Bill P. Parkas, Esq. McCoyd, Parkas & Ronan LLP
PRESENT: HON. MARGARET C. REILLY
DECISION & ORDER
HON. MARGARET C. REILLY Judge
The following papers were considered in the preparation of this decision:
Report of Guardian Ad Litem................................... 1
Affirmation of Services of Guardian Ad Litem and Exhibits........... 2
Stipulation of Settlement....................................... 3
Before the court is a contested proceeding, commenced in 2004, to probate an instrument, dated July 28, 2004 as the will of Murray Nelson. The complex and lengthy history of this proceeding will not be reiterated here at length; however, the court adopts the procedural background as enumerated in its prior decision and order, dated March 31, 2014.
On December 9, 2005, the court appointed Bill P. Parkas, Esq. as guardian ad litem (GAL) to represent the interests of Sabrina Nelson, an infant. The GAL submitted a report dated December 14, 2007 wherein he enumerated his efforts at reaching a settlement that protected and enhanced his ward's interests under the propounded instrument and in the estate, in lieu of requiring a determination on whether his ward was a distributee with standing to contest probate. Mr. Parkas also submitted evidence of his active participation in the litigation, including review of the extensive 1404 examination transcripts, document demands, court appearances, settlement discussions and negotiation of the stipulation. By decision and order dated March 27, 2008, petitioner's summary judgment motion was granted, Mr. Parkas was awarded a fee of $ 11, 679.75, and he was authorized to execute the stipulation of settlement on his ward's behalf. However, after a traverse hearing on May 10, 2010, this court ultimately determined that service of the summary judgment motion was improper and vacated its March 28, 2008 decision and order.
Subsequently, an amended probate petition was filed identifying four additional distributees, and additional objections were interposed. Temporary letters of administration were issued to the Public Administrator of Nassau County on June 28, 2013. Following the death of objectant Arnold Nelson on June 9, 2015, this proceeding was stayed until May 23, 2017, until Eleanor Nelson was appointed administrator of Arnold's estate in Suffolk County.
The GAL's ward reached the age of maj ority in July 2018, at which time Mr. Parkas' appointment lapsed. This matter was subsequently settled by stipulation, which Ms. Nelson executed on April 15, 2019. Therein, the parties agreed that the GAL would not seek a fee greater than $70,000.00, and Marie Soljour would satisfy the GAL's award. The court is not addressing the contents of the stipulation of settlement, as it was executed after the guardian ad litems' ward reached majority.
The court must set the fee for the guardian ad litem for his services up until his ward reached majority. "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" (Matter of Goliger, 58 A.D.3d 732, 732 [2d Dept 2008] [citations omitted]; accord Matter of Freeman, 34 N.Y.2d 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 determining what constitutes a reasonable attorney's fee, the court may consider factors such as "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, the customary fee charged for such services, and the results obtained" (Matter of Szkambara, 53 A.D.3d 502, 502-503 [2d Dept 2008] [citations omitted]; see Matter of Freeman, 34N.Y.2d 1 [1974]). "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 A.D.3d 674, 675 [2d Dept 2008]). These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem (Matter of Morris, 57 A.D.3d 674 [2d Dept 2008]).
The guardian ad litem has submitted extensive documentation regarding the services he rendered during this extremely protracted litigation. Mr. Parkas indicates that during the period following his December 2007 report through the date Ms. Nelson reached majority, he attended 26 court conferences, participated in numerous depositions, telephone calls and conferences with the parties and his ward. He engaged in extensive discovery, conducted and participated in examinations before trial, as well as non-party examinations of certain family members.
Additionally, following this court's decision and order dated March 31, 2014 granting Mr. Parkas' cross-motion to strike objections and failure to comply with discovery, Arnold Nelson appealed same and sought a stay of the instant proceeding. This necessitated Mr.
Parkas' preparation and filing of a brief in opposition to the appeal/request for a stay. While the request for a stay was denied, Mr. Nelson died before the scheduling of any oral argument. Thereafter, Mr. Parkas was again involved in extensive settlement negotiations.
The guardian ad litem reports that he spent 156.25 hours on this proceeding and requests a fee of $61,166.25, plus disbursements in the amount of $660.65, for a total of $61,826.90.
Considering the foregoing factors, the court fixes the fee of the guardian ad litem in the sum of $50,000.00 plus disbursements in the amount of $660.65, for a total of $50,660.65. The fee of the guardian ad litem shall be paid within thirty (30) days of the date of the decree to be signed in this proceeding.
The decree submitted is not in proper form and needs to incorporate the terms of the stipulation of settlement, as well as include a decretal paragraph awarding the GAL's fees.
Submit decree within sixty (60) days of the date hereof. Failure to submit the decree as directed may result in the proceeding being deemed abandoned (22 NYCRR 207.37).
This constitutes the decision and order of the court.