Opinion
2016–34
05-09-2018
In the MATTER OF the Probate Proceeding, WILL OF Rosario CIRNIGLIARO a/k/a Rosario Sal Cirnigliaro a/k/a Sal Cirni, Deceased.
Glenn Kroll, Esq., 92 Main Street, Bloomingburg, NY 12721, Attorney for Petitioner/Estate Farrell Fritz, P.C., 1320 RXR Plaza, Uniondale, NY 11556–1320, By: Robert M. Harper, Esq., Attorneys for Objectants
Glenn Kroll, Esq., 92 Main Street, Bloomingburg, NY 12721, Attorney for Petitioner/Estate
Farrell Fritz, P.C., 1320 RXR Plaza, Uniondale, NY 11556–1320, By: Robert M. Harper, Esq., Attorneys for Objectants
Frank J. LaBuda, J.
This matter comes before the Court on application of Glenn Kroll, Esq., the attorney for the above-referenced Estate. Counsel seeks an Order granting permission for the Estate to utilize funds in the Estate Account to retain a new attorney and for such other and further relief. The Objectants– Bridget Martell, Chad Martell, and Peter Cirni- cross-move this Court for an Order disqualifying Mr. Kroll as counsel for the Estate and for such other and further relief.
From the moving papers, it is evident that Mr. Kroll does not object to being disqualified as the attorney for the Estate. It is undisputed that Mr. Kroll would be called as a fact witness and give testimony in this matter due to his role as attorney-draftsman of the Decedent's Will. As such, this Court will grant the Objectants' request to disqualify Mr. Kroll as the attorney for the Petitioner/Estate.
Petitioner moves for permission to utilize funds from the Estate Account to pay the retainer fee of substitute counsel.
Petitioner annexes to his application an Affirmation of Kevin D. Bloom, Esq., of Bloom & Bloom, P.C., in which Mr. Bloom outlines the basis for his requested retainer fee of $14,000.00 to represent the Estate. Mr. Bloom requests said sum to move to reargue the Objectants' Motion for Summary Judgment, which was denied by this Court on December 28, 2017, and to move for Summary Judgment, "[a]nd, if I am not successful with those motions, the named Executrix could then make a separate application for my attorneys' fees to represent the Estate at trial."
Pursuant to Surrogate's Court Procedure Act § 2110, "the court is authorized to fix and determine the compensation of an attorney for services rendered to a fiduciary or to a devisee, legatee, distributee or any person interested or of an attorney who has rendered legal services in connection with the performance of his duties as a fiduciary or in proceedings to compel the delivery of papers or funds in the hands of an attorney." SCPA § 2110(1) . See also , 22 NYCRR 207.45(b) .
While this Court has discretion to render an award for attorneys' fees for services already performed prior to the closing of an estate, there is no provision of SCPA § 2110 that allows for this Court to approve an award of attorneys' fees to be paid from estate funds in order to pay the retainer fee of an attorney.
Indeed, case law is clear that SCPA § 2110 does not provide this Court with the discretion to award attorneys' fees for future services. In In the Matter of Rubin , 172 AD2d 841 (2d Dept 1991), one of two (2) co-fiduciaries moved the court for permission to use estate funds for the advance payment of attorneys' fees. In finding that the petitioner was seeking to "finance future litigation," the Rubin court declined to award such fees and held that "it is axiomatic that attorneys' fees cannot be allowed for future services." See also, In re Tomany's Estate , 258 AD 1060 (2d Dept 1940) [holding "it was error for the surrogate to make the allowances for services to be rendered"]; In re Starbuck's Ex'x , 225 AD 689 (2d Dept 1928) [holding "Surrogate can determine compensation of attorneys only for services rendered, and not for services to be rendered"]; In re Estate of Stroud , 38 Misc 3d 661 (2012) ; In re Luckenbach's Estate , 46 Misc 2d 864 (1965) [holding SCPA § 2110 "...has been construed to provide approval for completed legal services and not interim services"]; In re Dragonoff's Estate , 46 Misc 2d 855 (1965) [holding "The request of the attorneys that the fee now fixed include compensation for ‘all future services’... must be denied. There is no assurance that any future services that might be performed... will, in fact, be performed by the present petitioners"]; In re Rosenblum's Will , 137 NYS2d 481 (1955) [holding "future services are not within the purview of" SCPA § 2110 ]
There is nothing in the Petitioner's moving papers that inclines this Court to distinguish this matter from prior case law. Allowing the payment of counsel fees from Estate Funds for future legal services is speculative and presupposes that said services would be rendered for the benefit of the Estate as a whole, which is not evident at this time. In the event that Petitioner retains counsel of her own volition, she may then submit an application for payment of counsel fees from Estate Funds pursuant to SCPA § 2110 for services rendered of that attorney's representation of the Estate for this Court's consideration.
Petitioner/Executrix and principal legatee purports to be without sufficient funds to retain new counsel.
Lastly, this Court notes that Petitioner's intention of retaining Mr. Bloom in part to move to reargue this Court's December 28, 2017 Decision and Order would be premature, as such motion would be deemed untimely pursuant to CPLR § 2221 since there is nothing in Petitioner's current application that provides a basis to grant an extension of time for Petitioner to make such an application.
Any additional arguments not addressed herein were considered and deemed without merit.
Therefore, based on the above, it is
ORDERED , that the Petitioner's Notice of Motion is denied without prejudice for future submissions pursuant to SCPA § 2110 ; and it is further
ORDERED , that the Objectants' Notice of Cross–Motion is granted on consent to the extent that Glenn Kroll, Esq. is hereby disqualified as counsel for Petitioner at the trial in this matter.
This shall constitute the decision and order of this court.