Opinion
2001-00549
Submitted February 28, 2002.
April 1, 2002.
In a proceeding to settle the account of the estate of Joseph A. Quattrocchi, the petitioner, Amanda Libutti, appeals, as limited by her brief, from stated portions of a decree of the Surrogate's Court, Richmond County (Fusco, S.), dated January 4, 2001, which, inter alia, denied her a fiduciary's commission, awarded fiduciary's commissions to the objectants, and awarded an attorney's fee to the attorney for the objectants, payable out of the estate.
Avery J. Gross, Staten Island, N.Y., for appellant.
Robert A. Mulhall, Staten Island, N.Y., for respondents.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.
ORDERED that the decree is modified, on the facts, by deleting so much of the fifth decretal paragraph thereof as awarded fiduciary's commissions to the objectants; as so modified, the decree is affirmed insofar as appealed from, with costs payable by the petitioner to the objectants.
In light of the appellant's extensive delay in selling the real properties which comprised the estate, the Surrogate properly denied her a fiduciary's commission (see Matter of Flynn, 205 A.D.2d 326; Matter of Shulsky, 34 A.D.2d 545; Matter of Simpson, 61 Misc.2d 307; Matter of Engvelt, NYLJ, May 27, 1969, at 18, col 4 [Sur Ct Kings County 1969]; see also Matter of Weston, 91 N.Y. 502; Matter of Janes, 223 A.D.2d 20). However, the Surrogate improperly awarded such a fee to the objectants, who did not render any fiduciary services to the estate (see In re Rutlege, 162 N.Y. 31; Matter of James, 23 A.D.2d 529; Matter of Marshall, 15 A.D.2d 310).
Additionally, in light of the efforts of the objectants to compel the petitioner to list the properties at realistic asking prices, and their efforts in augmenting the estate by saving it fiduciary's commissions, the Surrogate properly awarded an attorney's fee to their attorney (see Matter of Scarsella, 195 A.D.2d 513, 516; Matter of Kinzler, 195 A.D.2d 464; Matter of Burns, 126 A.D.2d 809, 812; cf. Matter of Lirakis, 111 A.D.2d 924; Matter of Bellinger, 55 A.D.2d 448).
The petitioner's remaining contentions are without merit.
SANTUCCI, J.P., ALTMAN, FLORIO and FEUERSTEIN, JJ., concur.