Opinion
2021-03913
06-17-2021
In the Matter of Howard Muser Petitioner, For the Appointment of a Guardian for the Person and Property of Judith Brook, an Alleged Incapacitated Person. Adam Brook, M.D., Ph.D., Cross-Petitioner-Appellant, Howard Muser, Petitioner-Respondent. Dr. Judith Brook, Conservatee, Joseph Ruotolo, Guardian Ad Litem-Respondent, Ira Salzman, Court Examiner-Respondent, Nicole Fleur Hazard Brook, Third-Party Petitioner, Ian Seth Shainbrown et al., Claimants-Respondents, James Stuart Kaplan, Claimant.
Rachel Schulman, PLLC, Great Neck (Rachel Schulman of counsel), for appellant. Huth Reynolds LLP, Huntington (Karl Huth of counsel) and The Shainbrown Firm LLC, New York (Ian Shainbrown of counsel) for Howard Muser, Ian Seth Shainbrown and Karl C. Huth, respondents.
Rachel Schulman, PLLC, Great Neck (Rachel Schulman of counsel), for appellant.
Huth Reynolds LLP, Huntington (Karl Huth of counsel) and The Shainbrown Firm LLC, New York (Ian Shainbrown of counsel) for Howard Muser, Ian Seth Shainbrown and Karl C. Huth, respondents.
Before: Manzanet-Daniels, J.P., Kapnick, Gonzalez, Shulman, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered May 28, 2020, which directed the temporary guardian of the deceased incapacitated person, Dr. Judith Brook, to retain $500,000 from her funds for the payment of administrative expenses related to her guardianship, including legal fees, unanimously affirmed, with costs.
Despite the death of the incapacitated person on March 15, 2020, the court maintained the power to award attorneys' fees in connection with the guardianship proceedings and direct the guardian to retain funds to pay such fees (see Matter of Marion C.W. [Lisa K.], 83 A.D.3d 1087 [2d Dept 2011], lv dismissed 18 N.Y.3d 873 [2012]); see also Matter of Dandridge, 120 A.D.3d 1411, 1414 [2d Dept 2014]). Moreover, the court was involved in the guardianship proceedings since their commencement in May 2019 and has familiarity with the proceedings and the conduct of all parties involved; thus, it is in the best position to determine the fee awards.
Contrary to cross-petitioner's arguments, the court may also award reasonable attorneys' fees to petitioner's privately retained counsel, as the guardianship application was granted before her death (see Matter of Marion C.W. [Lisa K.], 83 A.D.3d 1087; cf. Matter of Enna D., 30 A.D.3d 518, 518-519 [2d Dept 2006]). In addition, cross- petitioner's argument that Mental Hygiene Law § 81.44(d)(3) mandates transfer of the question of administrative expenses related to the guardianship to the Surrogate's Court is unpersuasive, as Supreme Court has concurrent jurisdiction with the Surrogate's Court (see Kaminester v Foldes, 51 A.D.3d 528, 529 [1st Dept 2008]), and Mental Hygiene Law § 81.44(d)(3) cannot be read to "oust the Supreme Court from jurisdiction or limit the scope of its authority" (Pollicina v Misericordia Hosp. Med. Ctr., 82 N.Y.2d 332, 338-339 [1993]). This is particularly true where, as here, the issue before the court (i.e., the attorneys' fees) is unrelated to the administration of the estate and Supreme Court is in a better position to award such fees (cf. Benjamin v Morgan Guar. Trust Co. of N.Y., 173 A.D.2d 373, 374 [1st Dept 1991]).
We have considered the parties' remaining contentions and find them unavailing.