Opinion
No. 1412–P/1986.
2012-03-9
ESTATE OF Francis O'CONNELL, Deceased.
Joram J. Aris, Esq., for Terence F. O'Connell, movant. Wolf, Haldenstein, Adler, Freeman & Herz, LLP, (Alan A.B. McDowell, Esq., of counsel) for Ruth Hogan, cross movant.
Joram J. Aris, Esq., for Terence F. O'Connell, movant. Wolf, Haldenstein, Adler, Freeman & Herz, LLP, (Alan A.B. McDowell, Esq., of counsel) for Ruth Hogan, cross movant.
LEE L. HOLZMAN, J.
The only issue pending in the estate of this decedent, who died in 1986, is a demand by the cross movant, the personal representative of a deceased co-executor, that the movant, a testamentary beneficiary, pay the costs and legal fees incurred in responding to the motion and making her own cross motion. The cross movant's husband was appointed a co-executor on January 29, 1987 and died on December 11, 1994 while the estate remained pending.
After the cross movant commenced an accounting proceeding in April, 1996, her attorney sent a letter to the court requesting the cancellation of a conference scheduled for the next day, on the consent of the parties, due to ongoing settlement negotiations. By letter dated July 22, 1996, the court notified the parties that the accounting proceeding would be marked “adjourned without date.” There was no further action in the proceeding until the movant herein sought to restore to the court's calendar the accounting proceeding alleging, inter alia, that he never received certificates of indebtedness of the Mt. Eden Cemetery Association, Inc., that were bequeathed to him. The parties disagree as to why the certificates were not previously delivered, the cross movant alleging that the movant refused to accept them when they were offered, and the movant denying that he ever rejected this bequest. Furthermore, the movant submitted an affirmation by his prior attorney asserting that the certificates were never delivered to him as counsel for the movant.
A copy of a receipt and release, dated July 16, 1996, signed by the movant and notarized by his then counsel is attached to the cross motion. On the original return date of the motion, the cross movant tendered the certificates of indebtedness at issue to the movant's current counsel who accepted them and, after a few adjournments, the motion was withdrawn, rendering academic the branch of the cross motion seeking to deny the motion; however, the cross movant still seeks a determination on the branch of her motion seeking costs and legal fees.
The cross movant asserts that she is entitled to legal fees and costs based on either: 1) an indemnification clause in the 1996 receipt and release; or 2) the Rules of the Chief Administrator of the Courts (22 NYCRR § 130–1.1), as the motion is frivolous in light of the receipt and release. In further support of the cross-motion, the cross movant asserts: 1) that movant's counsel was notified by mail prior to the return date of the motion that sanctions would be sought if the application was not withdrawn; 2) the motion is not only without merit but also that it was not properly served as the movant himself personally served it; and, 3) the court should not consider the papers in opposition to the cross-motion because they were not timely served and filed. The essence of the movant's defense is that the motion had merit as he did not receive the certificates of indebtedness in a proper form until the return date of the motion.
The release provides that the signatories accepted the account, released and discharged the executors, both individually and in their fiduciary capacities, and waived the issuance and service of process in any proceeding for the judicial settlement of the executors' account. The release also provides that the parties would:
Indemnify and hold harmless the Executors of and from any and all claims, demands, losses, damages, and liability of any kind whatsoever which she sustains or incurs at any time by reason of any act or thing arising from, relating to, or in connection with all matters which have occurred with respect to the Estate through and including March 31, 1995 [with respect to the other co-executor] and December 11, 1994 [with respect to the deceased co-executor] ...
At the outset it is noted that the cross movant's argument regarding improper service of the motion is unavailing not only because it has nothing to do with the merits of the motion but also because SCPA 310(1) allows service by a party (cf. CPLR 2103[a] ). Furthermore, to the extent that movant's papers in opposition to the cross-motion, which he might reasonably have expected to be withdrawn when he withdrew his motion, were late, the court, in the exercise of its discretion, extends the time to serve and file opposition papers to the date that they were filed as the cross movant filed a reply thereto, and accordingly, is not harmed by the granting of the extension.
The general “American rule” is that parties pay their own legal fees “unless an award is authorized by agreement between the parties or by statute or court rule” (A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5 [1986] ). An applicable indemnification provision is an appropriate agreement; however, “[w]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” and “the court should not infer a party's intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise” (Hooper Assoc. Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 492–3 [1989] ).
Under the Rules of the Chief Administrator of the Courts a court may “award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct” as defined in this Part (22 NYCRR § 130–1.1[a] ), Frivolous conduct is defined as conduct which is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; ... undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or ... material factual statements that are false” (22 NYCRR § 130–1.1[c] ).
The record reveals that the parties envisioned that the certificates of indebtedness would be delivered in proper form to the movant at or about the time that he executed the receipt and release containing the indemnification clause; however, such certificates were never received by the movant until the return date of his motion. Moreover, the motion was withdrawn without either side definitively establishing whether the failure to deliver those certificates of indebtedness previously was the fault of those acting on behalf of the co-executors, the movant or due to the inadvertence of all parties. Thus, the movant failed to establish that an award of costs and legal fees is warranted under either the indemnification clause of the receipt and release or as a sanction for frivolous litigation.
Accordingly, this decision constitutes the order of the court denying the cross motion. The Chief Clerk shall mail a copy of this decision and order to respective counsel for the parties.