Opinion
93764/04.
Decided January 30, 2007.
STEPHEN E. DIAMOND, ESQ., GELLERT KLEIN, P.C., Attorneys for Petitioner-Administratrix Poughkeepsie, New York.
RONI L. JACOBSON, ESQ. WILSON JACOBSON, P.C. Attorneys for Objectants, LAURA HAHN and DAVID HAHN White Plains, New York.
STEPHEN G. LEVY, ESQ. Law Offices of STEPHEN G. LEVY, PLLC, Attorneys for Objectant PAUL MAHOTA Albany, New York.
BACKGROUND
The decedent died intestate on August 28, 2004 survived by her second husband and two adult children from her previous marriage. A third child from that marriage predeceased the decedent leaving no issue. Paul Mahota is the spouse, and Laura Hahn and David G. Hahn are the children.
The known assets of the decedent consisted of improved real estate located in Dover Plains, New York and Mount Washington, Massachusetts and personal possessions.
Temporary letters of administration were issued to Laura Hahn on October 28, 2004. On or about November 18, 2004, the temporary administratrix commenced a wrongful death action against Paul Mahota in Dutchess County Supreme Court (Index Number 5323/04). The action was assigned to the undersigned in the interests of judicial economy.
The parties achieved an agreement whereby Rita A. Brannen, the Dutchess County Commissioner of Finance, would serve as administratrix of the estate. The court confirmed that understanding in an order dated and entered May 9, 2005. She has served in that capacity through the present.
On or about June 3, 2005, the parties completed the circulation and execution of a document entitled "Settlement Agreement, Receipt and Release."
Paragraph I(J) of the Agreement provides:
"The parties desire to enter into this Settlement Agreement in order to provide for full settlement in the Administration of the Estate and to discharge all claims which are the subject of the Supreme Court Action, upon the terms and conditions set forth herein."
Paragraph II(3)(g) of the Agreement provides:
"The parties jointly and severally will accept the informal account as complete, final and stated; remise, release, and forever discharge the Temporary Administratrix and Administratrix individually and in their fiduciary capacity, of and from any and all claims, demands, actions and liability whatsoever for and on account of the proceedings, act and omissions of the Temporary Administratrix and Administratrix, and of and from all liability, responsibility or accountability for and on account of any matter growing out of or in any way connected with the estate, administration and distribution thereof."
The parties agreed to waive any right to a formal accounting
[Agreement ¶ II(3)(f)].
On the issue of counsel fees, the parties agreed to assume their own attorney's fees and costs in connection with the Supreme Court action and all matters pertaining to the estate, with one exception. Attorney Stephen E. Diamond was designated by the parties to determine the reasonableness of the written attorney fee plus disbursements request to be submitted by attorney Leroy Wilson, Jr. [Agreement ¶ III(a) and (b)]. The Agreement provides further that attorney Diamond's fees and disbursement would be submitted by affirmation at the conclusion of the estate administration I.D., at III(b).
On July 14, 2006, the administratrix filed a petition to judicially settle her account. Laura Hahn, David Hahn and Wilson Jacobson, P.C., successor to Leroy Wilson, Jr., Esq., P.C. responded by filing twenty (20) objections. Paul Mahota submitted six (6) objections. The administratrix served her answer with defenses, objections and points of law on October 26, 2006.
On October 6, 2006, Laura Hahn filed a petition for a decree awarding her an equitable share of the $11,320.00 commissions payable on the sale of the Dover Plains property, plus counsel fees and disbursements from the assets of the estate. The administratrix interposed her opposition to this request as part of her answer with defenses, objections and points of law. Paul Mahota also opposed the application.
On November 15, 2006, the administratrix filed the motion now under consideration. It was marked fully submitted on November 30, 2006. Paul Mahota has indicated that the administratrix has satisfactorily responded to his objections 1 through 4. Objections 5 and 6 remain. They are addressed to his opposition to the attorney's fee request of Leroy Wilson, Jr., Esq., P.C. n/k/a Wilson Jacobson, P.C. Paul Mahota also fully supports the underlying motion for summary judgment dismissing all of the Hahn/Wilson Jacobson objections.
The parties stipulated to consolidate Laura Hahn's petition for commissions with this accounting proceeding. Objection number 19 was withdrawn by objectants Hahn/Wilson Jacobson, P.C.
THE LAW: SUMMARY JUDGMENT
It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." ( Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067.) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. ( Albouyeh v. County of Suffolk, 96 AD2d 543 [2nd Dept. 1983] aff'd 62 NY2d 681.) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. ( Zuckerman v. City of New York, 49 NY2d 557, 562; Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259.)
THE LAW: PASSING OF TITLE AT DEATH
The decedent died intestate survived by three (3) distributees, namely, her spouse and two (2) adult children. Their rights to descent and distribution are governed by EPTL § 4-1.1(a)(1) in the first instance. The parties thereafter elected to resolve their differences and claims through the Settlement Agreement.
Upon the death of Katherine G. Hahn, intestate, on August 28, 2004, title to the Dover Plains, New York property passed immediately to her distributees as tenants in common. ( Matter of Jemzura, 65 AD2d 656, 657 [3rd Dept. 1978], aff'd 52 NY2d 1067.) The rule is identical for the Mount Washington, Massachusetts real estate. Title to the realty of a deceased intestate vests immediately in the heirs, and no distribution is required. ( Russo v. Inzirillo, 360 Mass. 862; 277 N.E.2d 302.)
The distributees assume the responsibility of paying the expenses associated with the real property which remains unsold for the simple reason they do not benefit the estate, but rather, the heirs. (Turano Radigan, New York Estate Administration, 2007 ed., § 15.08[1]; see also, Matter of Moore, 16 AD2d 697, 698 [2nd Dept. 1962].)
THE LAW: LEGAL FEES
The Surrogate bears the ultimate responsibility of deciding what constitutes reasonable attorney's fees, regardless of the existence of a retainer agreement ( Matter of Tendler, 12 AD3d 520, 521 [2nd Dept. 2004], or even where all interested parties have consented to the amount of fees requested. ( Matter of Bobeck, 196 AD2d 496, 497 [2nd Dept. 1993].)
The Uniform Rules for the Surrogate's Court, 22 NYCRR § 207.45, provide guidance on this issue, as well as the oft cited cases of Matter of Freeman, 34 NY2d 1, 9 and Matter of Potts, 213 AD 59, 62 [4th Dept. 1925], aff'd 241 NY 593. To the extent that an attorney's services benefit only an interested party to the estate and not the estate, the Surrogate may direct the party to personally pay a reasonable fee. ( Matter of Driscoll, 273 AD2d 381, 382 [2nd Dept. 2000].)
DECISION
That portion of the motion for summary judgment dismissing the Hahn/Wilson Jacobson, P.C. objections numbered 1, 2, 11, 12, 13, 14, 15, 16, and 17 is granted, either because they are without merit, or because they relate to the form of the account or to the schedule upon which a particular entry appears, but not to the substance of the account nor the impact upon the objectant's pecuniary interests. ( Matter of Tucciarone, 3 Misc 3d 237, 239-40 [Bronx Co. Sur. Ct. 2004].)
Objections 4 and 5 are dismissed. Attorney Stephen E. Diamond has provided a detailed affidavit in support of legal services plus disbursements advanced, together with contemporaneous time records and hourly rates. This substantially complies with 22 NYCRR § 207.45. The fee request is fair and reasonable taking into consideration his extensive experience as an estate practitioner, standing in the legal community, the hourly rates he charges for attorney and paralegal services are well within the customary fees charged by the Bar for similar services, the time and labor required are reasonable in light of the extended estate litigation instigated by the objectants and that the estate is now poised to conclude as a direct result of his efforts and that of the administratrix.
Objections 6 and 7 are dismissed. The parties agreed to resolve the counsel fee issue relating to Leroy Wilson, Jr., Esq. by specifying a mechanism for its determination in the Settlement Agreement. Attorney Diamond reviewed his time records and gave a plausible explanation of his opinion concerning an appropriate fee for services rendered to the estate, after discounting services which benefitted Laura Hahn directly. (Reply Affidavit, Ex. "C"). The Court will not disturb his conclusion.
Objection 9 is dismissed. Laura Hahn and David Hahn became the vested owners of the Mount Washington, Massachusetts real estate immediately upon their mother's death. They are, therefore, responsible for the costs associated with that property, not the estate. ( Russo v. Inzirillo, supra; Matter of Moore, supra.)
Objection 10 is dismissed. The $1,500.00 referee fee was the personal obligation of Laura Hahn and David Hahn in the first instance. The court now declines to shift that obligation so as to make it an estate expense. The request for reimbursement of attorney's fees in the sum of $2,870.00 is unsupported in the sense that it does not indicate whether those services were undertaken representing Laura Hahn when she served as temporary administratrix or such services benefitted the estate.
Objection 3 is sustained to the extent that the administratrix is directed to account for any interest which may have been earned in the escrow account maintained by KeyBank so as to amend Schedules A-2 and G of her account.
The Mahota objections 5 and 6 are sustained to the extent that they coincide with this decision and are in all other respects dismissed.
COMMISSIONS ISSUE
Laura Hahn has alleged she performed a variety of services in yeowoman fashion while serving as temporary administratrix to position the Dover Plains property for its eventual successful sale. This assertion is belied by the affirmation of legal services submitted by Leroy Wilson, Jr., Esq., dated May 20, 2005. It unequivocally demonstrates that attorneys were undertaking the performance of many of the fiduciary functions for which Laura Hahn credits herself.
While she failed to attach to her petition for commissions an itemized list of the personal property she inventoried at the property, the court has a copy of the list consisting of 234 items which was made a part of an earlier application submitted pursuant to CPLR Article 63. That motion was never decided by the court, as the parties resolved all of their differences through the Settlement Agreement. Moreover, no appraisal of the 234 items has been provided to allow for intelligent consideration of their value.
The Agreement, however, provides that all personal property of the decedent is valued at zero (¶ II[2][a] at pg. 4), unless sold by the administratrix and included as an asset of the gross estate. The administratrix identifies the personal property in Schedule B of her account and gives it a zero value.
The record indicates that the sale of the Dover Plains property occurred on July 11, 2005. It took place during the tenure of Rita A. Brannen, the administratrix. She is entitled to a full commission associated with the disposition of this estate asset. ( Matter of Passuello, 184 AD2d 108, 112 [3rd Dept. 1992].)
A temporary administratrix who is not finally named administrator has standing to request commissions under SCPA § 2307. (Turano Radigan, New York Estate Administration, 2007 Edition, § 15.08[b]; Matter of McGuire, 51 Misc 2d 56 [Sur. Ct., Nassau County 1966].) The record is clear that Laura Hahn entered into a plenary settlement regarding her claims to the estate and in the Supreme Court action. Any personal property she received in her capacity as temporary administratrix had no value and was effectively disposed of by the Settlement Agreement. The former temporary administratrix failed to preserve her right to seek commissions. Laura Hahn is not entitled to a commission. Accordingly, objections 8, 12, and 20 are dismissed in their entirety, along with Laura Hahn's petition, verified September 29, 2006, requesting a decree fixing her commissions.
On this application, the court considered the notice of motion for summary judgment dismissing objections supported by two (2) affidavits with eight (8) exhibits, answer to objections to account; response to the answers with defenses, objections and points of law; and, response to motion for summary judgment submitted on behalf of Paul Mahota, Leroy Wilson, Jr., Esq. affirmation in opposition to motion with three (3) exhibits, affirmation in opposition to motion submitted by Roni L. Jacobson, Esq., reply affirmation from Roni L. Jacobson, Esq. to the Mahota responsive papers, verified reply to answer with defenses, objections and points of law, reply affidavit with four (4) exhibits, petition filed by Laura Hahn for commissions.
The administratrix is directed to bring her account forward based upon the foregoing within twenty (20) days from this date, and counsel is directed to submit a decree judicially settling the account accordingly within the same time frame.
The foregoing constitutes the decision of the Court.