Opinion
No. 15285/06.
11-30-2017
In the Matter of the Application for Judicial Settlement of the Final Account of Dimitrios SPANOS, Esq., as the Guardian for the Property of Jack Bax, Deceased.
The following papers numbered 1 to 9 read on this motion for an order pursuant to CPLR 2221(e) for leave to renew the application of Dimitrios Spanos, Esq., Guardian for the Property of Jack Bax, pursuant to SCPA 2307(1) for an award of statutory final commissions in respect of his Final Account dated February 29, 2016 on the ground that the Appellate Division, Second Department has rendered a unanimous decision and Order dated February 1, 2017 in the Matter of Yolanda T.M. (Anonymous) 2017 N.Y. Slip Op 651 determining the meaning and application of SCPA 2307(a) and necessitating a change to this court's prior determination dated June 7, 2016 regarding the calculation of the Guardians Final Commissions under SCPA 2307(1) and awarding fair and reasonable Counsel fees to the Court Appointed Counsel for this Guardianship.
| PAPERS | NUMBERED |
|---|---|
| Notice of MotionAffidavits–Exhibits | 1–4 |
| Memorandum of Law Respecting Guardian's Motion to Reargue | 5–6 |
| Supplemental Attorney's Affirmation | 7–9 |
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Counsel for the Court Appointed Guardian moves for an order pursuant to CPLR § 2221(e) for leave renew the application of Dimitrios Spanos, Esq., Guardian for the Property of Jack Bax, pursuant to SCPA 2307(1) for an award of statutory final commissions in respect of his Final Account dated February 29, 2016 on the ground that the Appellate Division, Second Department has rendered a unanimous decision and Order dated February 1, 2017 in the Matter of Yolanda T.M. (Anonymous)147 AD3d 765 [2nd Dept 2017], determining the meaning and application of SCPA § 2307(a) and necessitating a change to this court's prior determination dated June 7, 2016 regarding the calculation of the Guardians Final Commissions under SCPA § 2307(1) and awarding fair and reasonable Counsel fees to the Court Appointed Counsel for this Guardianship.
For the reasons set forth below, the Movant's motion to renew this court's Order dated February 29, 2016 and the Order dated June 7, 2016 is denied.
Background/Contentions
St. John's Hospital filed a Petition seeking the appointment of a guardian for Jack Bax. On November 22, 2006, Justice Charles J. Thomas issued an Order and Judgment appointing Henry Orlow as Guardian of the Person and Property of Jack Bax. Orlow declined the appointment and on May 1, 2007 Justice Thomas appointed Dimitrios Spanos ("Spanos") as Personal and Property Guardian. Spanos qualified as Guardian on September 2, 2007 and filed his initial report on April 15, 2008.
Pursuant to an Application and Order dated January 22, 2008 John Sebastian Vaneria, Esq., from the law firm of Vaneria and Spanos was appointed as attorney for the Guardian of the IP.
The court notes that John Sebastian Vaneria, Esq. is a partner of the Guardian.
The Initial Report indicated that the Guardian had already facilitated Bax's move from his home in Queens, New York to Eidhoven in the Netherlands where Bax was to reside in a "guided living community." In addition, on January 24, 2008 Spanos obtained a Settlement Agreement wherein Bax's ex-wife relinquished her one half interest in Bax's real property.
On September 8, 2008, the foregoing actions were approved and ratified and the Court permitted the Guardian to proceed with the sale of Bax's realty for approximately $1,000,000.
The September 8, 2008 Order granted a legal fee of $42,780 to Counsel for the Guardian, John Vaneria.
The Order and Judgment dated November 22, 2006, stated that the "compensation of the guardian shall be fixed in subsequent order of the Court."
On January 14, 2010, an Order and Judgment was issued granting Spanos' request to resign as Guardian of the Person as a Personal Needs guardianship was established in the Netherlands.
The January 14, 2010 Order granted Counsel for the Guardian, Johan Vaneria, legal fees in the amount of $15,452.55.
Pursuant to SCPA § 2307, on April 19, 2010, Spanos was awarded commissions in the amount of $7,535.80 for the period covering May 1, 2007 through December 31, 2008.
Bax passed away on December 28, 2014 and a Notice of Death was issued on September 16, 2015. Spanos filed his final account on February 29, 2016.
The Guardian submitted an Order settling the Final Account wherein he requested commissions in the amount of $41,457. On June 7, 2016, this Court signed the Order settling the Final Account granting commissions totaling $16,150.50 "as an for all statutory commissions due guardian pursuant to SCPA 2307." Spanos subsequently moved to reargue that decision which was denied.
Discussion
Initially, with respect to the instant motion, the Movant failed to properly furnish the required documents with its motion papers by not submitting a copy of the Order to Show Cause to Settle the Final Account dated March 4, 2016, the Notice of Motion to Reargue dated July 13, 2016 and the Memorandum of Law Respecting Guardian's Motion to Reargue filed on February 3, 2017 . ( CPLR § 2214(c) ; see, Biscone v. JetBlue Airways, Corp., 103 A.D.3d 158, 957 N.Y.S.2d 361 (2nd Dept.2012) ; see also, Sheedy v. Pataki, 236 A.D.2d 92, 663 N.Y.S.2d 934 [3rd Dept.1997].)
The court notes that the Memorandum of Law was subsequently submitted as opposition to the within application.
Furthermore, the Movant failed to serve the within motion to reargue upon the surety, The Hanover Insurance Company. The court notes that the movant served the July 13, 2016 Motion to Reargue upon the surety.
Accordingly, Defendant's motion to renew is defective.
Even if the within application was not defective, the Motion would be denied on the merits. It is well settled that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" ( CPLR § 2221[e][2] ) and "shall contain reasonable justification for the failure to present such facts on the prior motion." ( CPLR § 2221[e][3] ; see Barnett v. Smith, 64 A.D.3d 669, 670, 883 N.Y.S.2d 573 [2d Dep't 2009] ; Chernysheva v. Pinchuck, 57 A.D.3d 936, 937, 871 N.Y.S.2d 621 [2d Dep't 2008].) " ‘A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.’ " ( In re Catherine V.D., 100 A.D.3d 992, 993, 955 N.Y.S.2d 152 [2d Dep't 2012], quoting Worrell v. Parkway Estates, LLC, 43 A.D.3d 436, 437, 840 N.Y.S.2d 817 [2d Dep't 2007].)
Vaneria argues that renewal is warranted in accordance with the Decision and Order of the Appellate Division in the Matter of Yolanda T.M. preventing this Court from reducing the Guardian's award of final commissions under SCPA § 2307(1) by sums previously received for annual commissions. (In re Yolanda T. M., 147 AD3d 765 [2nd Dept February 1, 2017].) In essence, Vaneria asserts that any court lacks discretion when determining the amount of compensation the Court awards to Guardians.
The court notes that should it be forced, upon choosing SCPA 2307 as a method for determining compensation, to strictly adhere to the guidelines, without the ability to assert it's discretion, Courts may cease to use SCPA 2307 as a basis for determining compensation.
Pursuant to Mental Hygiene Law § 81.28(a) :
"The court shall establish, and may from time to time modify, a plan for the reasonable compensation of the guardian or guardians. The plan for compensation of such guardian must take into account the specific authority of the guardian or guardians to provide for the personal needs and/or property management for the incapacitated person, and the services provided to the incapacitated person by such guardian."
In the Law Revision Commission Comments relating to MHL § 81.28(a), the Commission states that "... the court is not, and should not consider itself, bound by that scheme in all cases, particularly where the primary responsibilities of the guardian involve personal care."
"The comments of the Commission make clear that the court retains discretion to adopt any compensation plan it deems appropriate to the extent that the guardian exercises powers of fiscal management." (Emphasis added.) ( Matter of Sehr, 169 Misc.2d 543, 545, 646 N.Y.S.2d 937 [Sur. Ct. N.Y. Co.1996].)
"A court is authorized to award ‘reasonable compensation’ to a guardian of the person or property of an incapacitated person for services rendered in caring for the personal needs and managing the property of the incapacitated person (citations omitted), and it is within the court's discretion what, if any, compensation is due such a fiduciary." (Emphasis added) ( In re Frank C., 102 A.D.3d 683, 684, 958 N.Y.S.2d 164 [2nd Dept 2013] citing In re Joshua H., 80 A.D.3d 698, 914 N.Y.S.2d 914 [2nd Dept 2011].)
Pursuant to SCPA § 2307(1), a guardian of the property of an incapacitated person, like any other "fiduciary", "is entitled to a commission for receiving and paying out sums of money." ( In re Yolanda T.M., 137 A.D.3d 1280, 1281, 28 N.Y.S.3d 709 [2nd Dept 2016] [remitting the matter to the Supreme Court, "to set forth its calculations and the reasons for its determination with respect to the appellant's request for an award of guardianship commissions pursuant to SCPA § 2307(1).")
Herein, The Guardian seeks a final commission in the amount of $37,428 and annual commission for 2014 in the amount of $4,029. The net effect of this type of an award would be to allow the Guardian to "double-dip" on his annual commissions.
In determining the Guardian's commission, the court added up the initial funding plus all principal charges plus all income received in the course of the guardianship, plus all disbursements made in the course of the guardianship, plus the balance on hand totaling $1,225,862. The court then applied SCPA § 2307(1)(a) through (e) percentages to that total and calculated the "Receiving Compensation" of $19,823.28 . The court then calculated the awarded "Disbursement Compensation" totaling $19,533.20 which accounts for all commissions. The court then added the "Receiving Compensation" to the "Disbursement Compensation" (totaling $39,356.48). The court then subtracts the actual annual commissions of $23,205.98 from $39,356.48 and generated the Guardian Final Commission of $16,150.50.
Compensation on Receipts:$100,000 x 2.5%= $2,500
$200,000 x 2% = $4,000
$700,000 x 1.5% = $10,500
$225,862 x 1.25% = $2,823.28
$19,823.28
Compensation on Disbursements:$100,000 x 2.5% = $2,500
$200,000 x 2% = $4,000
$700,000 x 1.5% = $10,500
$202,656.02 x 1.25% = $2,533.20
$19,823.20
The Appellate Division First Department recently held that the Motion Court exercised its discretion and did not violate the doctrine of law of the case by awarding compensation that failed to strictly comply with SCPA § 2307. (Goldstein v. Zabel, 146 AD3d 624 [1st Dept. January 24, 2017].) The Appellate Division, in the Matter of Yolanda T.M., held that "there was no basis for court to reduce that award" of guardianship commissions for guardian of an incapacitated person by the sum of the prior compensation received by the guardian. (In re Yolanda T. M., at 766.) Although the Second Department determined that there was no basis in In re Yolanda T. M., the within action can be distinguished from Yolanda T.M., in that herein the court's calculation balanced the interests of the Incapacitated Person's estate and his/her ultimate beneficiaries with those of the Guardian's right to fair compensation. (See In re Frank C., 102 A.D.3d 683, 958 N.Y.S.2d 164.) The excessive request herein is even more egregious because the personal needs guardianship was truncated by relocating the Incapacitated Person to the Netherlands in 2008; although the motion to be discharged as Personal Needs Guardian was not heard and decided until 2010 the Guardian was involved in personal needs from commission in May 2007 to relocation. In fact, in addition to compensation pursuant to SCPA, the Guardian was awarded, by Order dated April 19, 2010, an additional $7500 representing extraordinary services provided prior to the move to the Netherlands.
The Honorable A. Gail Prudenti, in November 30, 2004 released the "Report and Recommendations; The Guardianship Task Force," wherein it was noted that should "strict adherence to a statutory formula (be it either Section 2307 or Section 2309 ) ... result in a windfall to the guardian, the Task Force recommends that the compensation awarded should be commensurate with the service actually rendered." (Report and Recommendations; The Guardianship Task Force, Compensation of Guardians, pp 6–7 [November 30, 2004].) Herein, the Court's award of compensation incorporates numerous factors, including, but not limited to, the services rendered by the Guardian. The court notes that an award calculated in strict compliance, as defined by movant, with SCPA § 2307 would lead to a windfall for the Guardian given the nature of the within action.
The court notes, that despite being directed by the Court to submit an affirmation of extraordinary services to support compensation in excess of the Court's calculation pursuant to SCPA § 2307, Guardian did not do so.
Conclusion
For the reasons set forth above, the Guardian's motion to renew is denied.