It is hereby ORDERED that the amended decree is unanimously affirmed without costs. Memorandum: On a prior appeal, we modified a decree by vacating the award of attorneys' fees, costs and disbursements and remitting the matter to Surrogate's Court for a determination whether those fees, costs and disbursements were reasonable (Matter of JPMorgan Chase Bank, N.A. [Roby], 158 AD3d 1224 [4th Dept 2018]). Objectant now appeals from an amended final decree of the Surrogate that, inter alia, awarded $88,461 in attorneys' fees for the attorney for petitioner.
It is hereby ORDERED that the amended decree is unanimously affirmed without costs. Memorandum: On a prior appeal, we modified a decree by vacating the award of attorneys’ fees, costs and disbursements and remitting the matter to Surrogate's Court for a determination whether those fees, costs and disbursements were reasonable ( Matter of JPMorgan Chase Bank, N.A. [Roby] , 158 A.D.3d 1224, 71 N.Y.S.3d 765 [4th Dept. 2018] ). Objectant now appeals from an amended final decree of the Surrogate that, inter alia, awarded $88,461 in attorneys’ fees for the attorney for petitioner.
In awarding attorney's fees to the father, the court did not state, and we cannot determine on this record, whether it did so based upon the custodial stipulation between the parties or pursuant to statute. Consequently, we are unable " ‘to determine whether the award was within the proper exercise of the court's discretion’ " ( Ciura v. Muto , 24 A.D.3d 1209, 1210, 808 N.Y.S.2d 842 [4th Dept. 2005], lv denied 7 N.Y.3d 701, 702, 818 N.Y.S.2d 191, 850 N.E.2d 1166 [2006] ; see alsoMatter of JPMorgan Chase Bank, N.A. [Roby] , 158 A.D.3d 1224, 1225-1226, 71 N.Y.S.3d 765 [4th Dept. 2018] ; see generallyMurphy v. Murphy , 126 A.D.3d 1443, 1447, 6 N.Y.S.3d 825 [4th Dept. 2015] ). We therefore modify the order by vacating the sixth ordering paragraph, and we remit the matter to Supreme Court to determine and place on the record the basis for the award of attorney's fees and whether those fees are reasonable.
Consequently, the court's determination that JPMorgan did not breach its fiduciary duty to Sarah was warranted by the facts. Sarah's contention that the Surrogate's Court was without authority to award JPMorgan legal fees is without merit (see SCPA 2110[1] ; Matter of JPMorgan Chase Bank, N.A. [Roby], 158 A.D.3d 1224, 1225, 71 N.Y.S.3d 765 ). However, the court should not have approved the legal fees requested by JPMorgan without consideration of the reasonableness of those fees.
I find that the record is not sufficient to determine at this juncture whether legal fees requested by M&T to be paid to its counsel should be approved in whole, in part, or at all. As our Appellate Division pointed out in Matter of JP Morgan Chase Bank, N.A. (Roby), 158 A.D.3d 1224, 1225 [2018], a "Surrogate has jurisdiction to award legal fees (see Matter of Stortecky v. Mazzone, 85 N.Y.2d 518, 525-526 [1995]" in a trust accounting proceeding. However, in making any such award, the Court must consider a variety of factors:
This section is a codification of well-settled law in New York regarding legal fees in New York surrogate's courts (see Matter ofPotts. , 213 A.D. 59, 209 N.Y.S. 655 [4th Dept. 1925], affd 241 N.Y. 593, 150 N.E. 568 [1925] ; 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 at 62, 209 N.Y.S. 655;JPMorgan Chase Bank, N.A. [Roby] , 158 A.D.3d 1224, 1225, 71 N.Y.S.3d 765 [4th Dept. 2018] ). Ultimately, the standard is reasonableness ( Matter of Freeman , 40 A.D.2d 397, 341 N.Y.S.2d 511 [4th Dept. 1973], affd 34 N.Y.2d 1, 355 N.Y.S.2d 336, 311 N.E.2d 480 [1974] ; In re Feinberg , 5 N.Y.3d 206, 210, 833 N.E.2d 1204, 1206, 800 N.Y.S.2d 529 [2005] ).