Opinion
1550 CA 17–00579
02-02-2018
In the Matter of the Judicial Settlement of the Final Account of JPMORGAN CHASE BANK, N.A., (Successor by Conversion to JPMorgan Chase Bank, Successor by Merger to the Chase Manhattan Bank, Successor by Merger to the Chase Manhatten Bank, N.A., Successor by Merger to Chase Lincoln First Bank, N.A., Successor in Interest to Lincoln First Bank, N.A.), as Trustee of the Trust Under the Last Will and Testament of Lucy Gair Gill, Deceased, for the Benefit of Mary Gill Roby, et al., Petitioner–Respondent. v. Elizabeth Lee ROBY, Kathryn Starr Roby Johnson and William S. Roby, III, Objectants–Appellants.
WILLIAM S. ROBY, III, ROCHESTER, FOR OBJECTANTS–APPELLANTS. NIXON PEABODY LLP, ROCHESTER (MEGHAN K. MCGUIRE OF COUNSEL), FOR PETITIONER–RESPONDENT.
WILLIAM S. ROBY, III, ROCHESTER, FOR OBJECTANTS–APPELLANTS.
NIXON PEABODY LLP, ROCHESTER (MEGHAN K. MCGUIRE OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:As set forth in our prior appeal, petitioner trustee filed a petition for judicial settlement and final accounting regarding a trust established for the benefit of Mary Gill Roby, which terminated upon her death (Matter of JPMorgan Chase Bank N.A. [Roby], 122 A.D.3d 1274, 996 N.Y.S.2d 816 [4th Dept. 2014] ). After we affirmed the amended order of Surrogate's Court that dismissed the objections ( id. at 1275, 996 N.Y.S.2d 816 ), petitioner sought judicial settlement of the account and to fix and approve attorneys' fees. The Surrogate issued a final decree granting the petition and fixing the attorneys' fees, costs and disbursements for the attorney for petitioner. Objectants now appeal.
Objectants' contention that the Surrogate exceeded his jurisdiction in awarding attorneys' fees is raised for the first time on appeal and is therefore not properly before us (see Matter of Trombley, 137 A.D.3d 1641, 1643, 29 N.Y.S.3d 712 [4th Dept. 2016] ). In any event, we conclude that it is without merit. The Surrogate has jurisdiction to award legal fees (see Matter of Stortecky v. Mazzone, 85 N.Y.2d 518, 525–526, 626 N.Y.S.2d 733, 650 N.E.2d 391 [1995] ). On the prior appeal, we did not impose costs upon objectants (see generally SCPA 2302[5] ; Matter of Wilhelm, 60 A.D.2d 32, 39, 400 N.Y.S.2d 402 [4th Dept. 1977], amended 62 A.D.2d 1155, 1156, 405 N.Y.S.2d 157 [4th Dept. 1978], affd 46 N.Y.2d 947, 415 N.Y.S.2d 413, 388 N.E.2d 737 [1979] ). That did not preclude the Surrogate, however, from awarding attorneys' fees to petitioner for work on that appeal pursuant to SCPA 2110(1) (see Matter of Marsh, 13 Misc.3d 1231 [A], 2006 N.Y. Slip Op. 52077 [U], *3–4, 2006 WL 3069296 [Sur. Ct., Westchester County 2006] ; see also Matter of Reimers, 264 N.Y. 62, 64–65, 189 N.E. 782 [1934] ).
We nevertheless agree with objectants that the Surrogate erred in approving the attorneys' fees, costs and disbursements requested by petitioner without considering the required factors. "It is well settled that, in determining the proper amount of attorneys' fees and costs, the court ‘should consider the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained’ " ( Matter of HSBC Bank USA, N.A. [Campbell], 150 A.D.3d 1661, 1663, 55 N.Y.S.3d 557 [4th Dept. 2017], quoting Matter of Potts, 213 App.Div. 59, 62, 209 N.Y.S. 655 [4th Dept. 1925], affd 241 N.Y. 593, 150 N.E. 568 [1925] ). Here, the Surrogate failed to make any findings with respect to the Potts factors, and we are therefore unable to review the Surrogate's implicit determination that the attorneys' fees, costs and disbursements are reasonable (see Matter of HSBC Bank USA, N.A. [Vaida], 151 A.D.3d 1712, 1713, 57 N.Y.S.3d 586 [4th Dept. 2017] ). We therefore modify the decree by vacating the award of attorneys' fees, costs and disbursements, and we remit the matter to Surrogate's Court for a determination whether those fees, costs and disbursements are reasonable, following a hearing if necessary (see id. ).
Objectants further contend that the Surrogate did not consider the McDonald factors in awarding commissions to petitioner (see Matter of McDonald, 138 Misc.2d 577, 580, 525 N.Y.S.2d 503 [Sur. Ct., Westchester County 1988] ). We reject that contention. Those factors are used to determine what are "reasonable" commissions to a trustee pursuant to SCPA 2312(2). SCPA 2312(4)(a) provides, however, that a corporate trustee "shall be entitled to receive at least the compensation provided for an individual trustee under," inter alia, SCPA 2309(1) (emphasis added). Here, the Surrogate awarded the statutory commissions (see SCPA 2309[1] ), and there was therefore no need to address the McDonald factors. We reject the further contention of objectants that they are entitled to disclosure on the issue of commissions.
We have considered objectants' remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the decree so appealed from is unanimously modified on the law by vacating the award of attorneys' fees, costs and disbursements and as modified the decree is affirmed without costs, and the matter is remitted to Surrogate's Court, Monroe County, for further proceedings.