Opinion
2017–11312 Index No. 5594/83
01-09-2019
In the MATTER OF Winnie WILLIAMS, Deceased. Leander Lewis, Petitioner-Respondent; v. Steve Okenwa, Respondent-Appellant, et al., Respondent.
C. Steve Okenwa, P.C., New York, NY, for respondent-appellant.
C. Steve Okenwa, P.C., New York, NY, for respondent-appellant.
MARK C. DILLON, J.P., BETSY BARROS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
"In a proceeding pursuant to SCPA 2110 to fix and determine an attorney's fee, the Surrogate bears the ultimate responsibility of deciding what constitutes a reasonable legal fee, regardless of the existence of a retainer agreement or whether all of the interested parties have consented to the amount of fees requested" ( Matter of Talbot, 84 A.D.3d 967, 968, 922 N.Y.S.2d 552 ; see Matter of Linder, 153 A.D.3d 1343, 1345, 62 N.Y.S.3d 121 ; Matter of Thompson, 66 A.D.3d 1035, 1036, 888 N.Y.S.2d 127 ; Matter of Piterniak, 38 A.D.3d 780, 781, 833 N.Y.S.2d 530 ). The Surrogate is further "empowered to order a return of the counsel fees previously paid out without prior court approval" ( Matter of Greenidge, 134 A.D.2d 592, 593, 521 N.Y.S.2d 715 ). SCPA 2110(3) provides that in the event that any attorney has already been paid an amount "in excess of the fair value of his [or her] services as thus determined, the court is authorized to direct him [or her] to refund the excess" (see Matter of Askin, 113 A.D.3d 72, 77, 976 N.Y.S.2d 492 ; Matter of Greenidge, 134 A.D.2d at 593, 521 N.Y.S.2d 715 ; Matter of Krulish, 130 A.D.2d 959, 959, 516 N.Y.S.2d 149 ).
Here, the Surrogate's Court was empowered under SCPA 2110(3) to fix and determine the amount of an attorney's fee, and to direct attorney Steve Okenwa (hereinafter the appellant) to refund any amount that it determined to be in excess of the fair value of the services rendered (see Matter of Askin, 113 A.D.3d at 77, 976 N.Y.S.2d 492 ). Contrary to the appellant's contention, SCPA 2110(3) does not require that the petition contain an allegation that the fees paid were excessive. Accordingly, we agree with the court's denial of that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action.
Furthermore, the Surrogate's Court providently exercised its discretion in determining that the appellant's motion was frivolous within the meaning of 22 NYCRR 130–1.1, and in awarding an attorney's fee to the petitioner, Leander Lewis. In this regard, the court determined that the appellant continued to engage in frivolous conduct even after he was made aware of the lack of a legal basis for his actions.
DILLON, J.P., BARROS, IANNACCI and CHRISTOPHER, JJ., concur.