In the Matter of Estate of Cramer

6 Citing cases

  1. Bartolini v. Kunze (In re Spiak)

    208 A.D.3d 1482 (N.Y. App. Div. 2022)   Cited 3 times

    Next, to the extent that respondent maintains that only one commission, if any, would be warranted here, given that the gross value of the estate amounts to $300,000 or greater, petitioners are each, in theory, entitled to a full statutory commission (see SCPA 2307[5] ); neither Surrogate's Court nor petitioners were under an obligation to directly inform respondent of this possibility. That said, Surrogate's Court correctly held that issues of fact remain as to petitioners’ otherwise mandatory statutory commissions in light of, among other things, respondent's viable breach of fiduciary duty objection (see generallyMatter of Billmyer, 142 A.D.3d 1000, 1002, 37 N.Y.S.3d 330 [2d Dept. 2016] ; Matter of Carbone, 101 A.D.3d at 869, 955 N.Y.S.2d 209 ; Matter of Cramer, 24 A.D.3d 864, 866, 804 N.Y.S.2d 865 [3d Dept. 2005] ; Matter of Farone, 162 A.D.2d 828, 829, 557 N.Y.S.2d 849 [3d Dept. 1990] ; Matter of Campbell, 138 A.D.2d 827, 829–830, 525 N.Y.S.2d 745 [3d Dept. 1988] ; Matter of Rozycki, 144 Misc.2d 741, 742–743, 545 N.Y.S.2d 921 [Sur. Ct. Bronx County 1989] ). Additionally, because "[t]he payment of commissions is not a gratuity but compensation for services rendered in collecting and administering the assets of the estate and in distributing its net proceeds" ( Matter of Parkinson, 138 Misc.2d at 1071, 526 N.Y.S.2d 379 ; see SCPA 2307[1] ), the court may also exercise its discretion over the requested commissions if it is established that one or more of petitioners carried out no such services (see generallyMatter of Johnson, 166 A.D.3d 1432, 1433, 89 N.Y.S.3d 381 [3d Dept. 2018] ; Matter of Schaich, 55 A.D.2d 914, 915, 391 N.Y.S.2d 135 [2d Dept. 1977], lv denied 42 N.Y.2d 802, 397 N.Y.S.2d 1026, 366 N.E.2d 293 [1977] ).

  2. In re Spiak

    2022 N.Y. Slip Op. 5190 (N.Y. App. Div. 2022)

    operly include the value of petitioners' collective half-share of the Fidelity IRA, which was "receiv[ed] and pa[id] out" during petitioners' service (SCPA 2307 [1]; see generally Matter of Saphir, 73 Misc.2d 907, 909-913 [Sur Ct, Kings County 1973]). Next, to the extent that respondent maintains that only one commission, if any, would be warranted here, given that the gross value of the estate amounts to $300,000 or greater, petitioners are each, in theory, entitled to a full statutory commission (see SCPA 2307 [5]); neither Surrogate's Court nor petitioners were under an obligation to directly inform respondent of this possibility. That said, Surrogate's Court correctly held that issues of fact remain as to petitioners' otherwise mandatory statutory commissions in light of, among other things, respondent's viable breach of fiduciary duty objection (see generally Matter of Billmyer, 142 A.D.3d 1000, 1002 [2d Dept 2016]; Matter of Carbone, 101 A.D.3d at 869; Matter of Cramer, 24 A.D.3d 864, 866 [3d Dept 2005]; Matter of Farone, 162 A.D.2d 828, 829 [3d Dept 1990]; Matter of Campbell, 138 A.D.2d 827, 829-830 [3d Dept 1988]; Matter of Rozycki, 144 Misc.2d 741, 742-743 [Sur Ct, Bronx County 1989]). Additionally, because "[t]he payment of commissions is not a gratuity but compensation for services rendered in collecting and administering the assets of the estate and in distributing its net proceeds" (Matter of Parkinson, 138 Misc.2d at 1071; see SCPA 2307 [1]), the court may also exercise its discretion over the requested commissions if it is established that one or more of petitioners carried out no such services (see generally Matter of Johnson, 166 A.D.3d 1432, 1433 [3d Dept 2018]; Matter of Schaich, 55 A.D.2d 914, 915 [2d Dept 1977], lv denied 42 N.Y.2d 802 [1977]).

  3. Stewart v.

    125 A.D.3d 129 (N.Y. App. Div. 2014)   Cited 6 times

    Plaintiff's expert noted that it would be "anomalous" to assert that trial counsel should be compensated less favorably than new counsel for performing the work that had not been contemplated by the initial retainer. This is not a case, like those relied on by defendant, in which the retainer did not contemplate an additional fee for the appeal, or an attorney sought a midstream modification of the original fee agreement (compare Matter of Cramer, 24 AD3d 864, 865-66 [3d Dept 2005] [retainer did not contemplate additional contingent fees, and client registered objection to additional fees sought]; Naiman v New York Univ. Hospitals Ctr., 351 F Supp 2d 257 [SD NY 2005] [retainer silent on the issue of fees for the appeal]; Belzer v Bollea, 150 Misc 2d 925 [Sup Ct, NY County, 1990] [client objected to enhanced contingent fee not contemplated in initial retainer]; Siagha v David Katz & Assoc., LLP, 16 Misc 3d 1130[A], 2007 Slip Op 51650[U], *10-11 [Sup Ct, NY County, 2007] [retainer agreement silent as to fees for appellate work or collateral litigation, and the plaintiff objected to an enhanced contingency fee]). Nor is the charging of a separate fee for appellate work prohibited by section 603.7(e) of this Court's rules (22 NYCRR 603.7[e]), which sets forth schedules of permissible contingent fee arrangements in personal injury cases other than those involving medical practice.

  4. GIOVANIELLI v. CERTAIN UNDERWRITERS AT LLOYDS

    2009 N.Y. Slip Op. 50984 (N.Y. Sup. Ct. 2009)

    Second, defendant Lloyds also argues that summary judgment is "inappropriate" as the NY Judgment upon which plaintiffs rely to support their instant Insurance Law § 3420 action is currently under appeal, citing In Re Estate of Cramer, 24 AD3d 864 [3d Dept 2005] (holding "a judgment is not final until any appeals are complete"). It is also well settled that "a perfected appeal does not stay the execution of the judgment or order appealed from, and that to obtain a stay certain statutory requirements must be complied with either as to giving an undertaking or getting an order of the court.

  5. Giovanielli v. Certain Underwriters at Lloyds, London, 2009 NY Slip Op 31181(U) (N.Y. Sup. Ct. 5/14/2009)

    2009 N.Y. Slip Op. 31181 (N.Y. Sup. Ct. 2009)

    2. Stay Pending Appeal. Second, defendant Lloyds also argues that summary judgment is "inappropriate" as the NY Judgment upon which plaintiffs rely to support their instant Insurance Law § 3420 action is currently under appeal, citing In Re Estate of Cramer, 24 AD3d 864 [3d Dept 2005] (holding "a judgment is not final until any appeals are complete"). It is also well settled that "a perfected appeal does not stay the execution of the judgment or order appealed from, and that to obtain a stay certain statutory requirements must be complied with either as to giving an undertaking or getting an order of the court.

  6. Giovanielli v. Certain Underwriters at Lloyds, London, 2009 NY Slip Op 50984(U) (N.Y. Sup. Ct. 5/14/2009)

    2009 N.Y. Slip Op. 50984 (N.Y. Sup. Ct. 2009)

    2. Stay Pending Appeal. Second, defendant Lloyds also argues that summary judgment is "inappropriate" as the NY Judgment upon which plaintiffs rely to support their instant Insurance Law § 3420 action is currently under appeal, citing In Re Estate of Cramer, 24 AD3d 864 [3d Dept 2005] (holding "a judgment is not final until any appeals are complete"). It is also well settled that "a perfected appeal does not stay the execution of the judgment or order appealed from, and that to obtain a stay certain statutory requirements must be complied with either as to giving an undertaking or getting an order of the court.