Opinion
10792/2008
05-02-2017
U.S. Bank Trust National, et al., Plaintiff, v. Sheikhzadi Sultana, et al., Defendants.
For Plaintiff: Rosicki, Rosicki & Associates, P.C., by Melissa S. Kubit, Esq., 51 East Bethpage Road, Plainview, New York 11803 For the Guardian Ad Litem: Alan Kestenbaum, Esq., 42-40 Bell Boulevard, Bayside, New York 11361
For Plaintiff: Rosicki, Rosicki & Associates, P.C., by Melissa S. Kubit, Esq., 51 East Bethpage Road, Plainview, New York 11803 For the Guardian Ad Litem: Alan Kestenbaum, Esq., 42-40 Bell Boulevard, Bayside, New York 11361 Salvatore J. Modica, J.
Papers Numbered Motion..........................................................................................1-5 Opposition....................................................................................6-9 SALVATORE J. MODICA, J.:
The motion is by Alan C. Kestenbaum, Esq., who served as a guardian ad litem in this mortgage foreclosure action, as appointed by now retired Justice Phyllis O. Flug, by order dated August 26, 2008. According to a document filed by the Clerk on November 14, 2013, the action was discontinued and the notice of pendency cancelled when the defendant borrower paid the mortgage loan. No referee or receiver was ever appointed.
Mr. Kestenbaum seeks payment based on hourly rates totaling $3,150, and additional disbursements of $45, representing the fee for the instant motion. He states that his usual fee is $450 per hour and that he worked 9 hours on this matter, reducing his fee to $350.00 per judicial appointments. He caused certain documents to be filed. He does not state, in his supporting affirmation seeking the Court to fix his fee, whether he personally prepared the documents, such as the Guardian's Consent and Qualifying Affirmation, Report of Guardian Ad Litem, and the Answer of the Guardian Ad Litem and Military Attorney. All those documents were signed by Mr. Kestenbaum and the date handwritten presumably by him, of October 20, 2008. In fact, from paragraph 20 of Ms. Kubit's affirmation, it is clear that those documents were prepared for Mr. Kestenbaum, and not drafted by him. It is indeed the Court's experience that the plaintiff-lender's counsel usually prepares the reports for the court-appointed fiduciaries.
Rosicki, Rosicki & Associates, P.C., a law firm respected for representing lenders in mortgage foreclosure cases, objects to the fee sought by Mr. Kestenbaum. Ms. Kubit, for the firm, states that the standard fee is $500 for a referee and $250 for a guardian ad litem. Actually, courts have adjusted such fees, and it is the experience of the undersigned to award $750 to a referee and a flat fee of $500 for a guardian ad litem.
Indeed, courts, in foreclosure actions, typically award lender's attorneys a flat fee of $3,500 for their efforts. A referee, who performs a lot of work, gets, at most, $750, and is given only $500 by other judges, as Ms. Kubit observes. By that yardstick, Ms. Kubit is entirely correct that Mr. Kestenbaum's demand is excessive and over-the-top.
The work of guardians ad litem in mortgage foreclosure cases serves an important function, especially where a party cannot be found. The guardian ad litem "has a concurrent obligation, as an officer of the court, to make a thorough, fair and objective report of the information he obtains through his investigations." Riley v. Erie Lackawanna R. Co., 119 Misc 2d 619, 621 (Sup. Ct. Chautauqua County 1983).
Awards for guardian ad litems can be adjusted based on the work and factors involved. See, e.g., JP Morgan Chase, Nat. Ass'n v. McDonald, 46 Misc 3d 315 (Sup. Ct. Madison County 2014) (in mortgage assignee's foreclosure action, guardian ad litem was entitled to attorneys' fees award, in requested amount of $900, where she undertook efforts to locate heirs following mortgagor's death and she consulted with court-appointed temporary administrator of mortgagor's estate regarding nature of claim); Wells Fargo Bank, N.A. v. Kahya, 2013 WL 6579705, 2013 NY Slip Op. 33091(U) (Sup. Ct. Suffolk County 2013) ("The application of the Court-appointed Guardian Ad Litem and Military Attorney for an award of additional fees and compensation is granted to the extent that the movant is granted the sum of $3,750.00 in attorney's fees in connection with opposing the plaintiff's summary judgment motion, and an additional $45.00 for the costs of the motion in applying for additional fees, and is otherwise denied."); Roslyn Sav. Bank v. Jones, 69 Misc 2d 733, 746 (Sup. Ct. Nassau County 1972) ("The application by the guardian ad litem to determine the fee for his services is granted to the extent of awarding him a fee in the amount of $500.00.").
In the present case, Mr. Kestenbaum was not asked to find and trace missing heirs. He was asked to review documents, sign a consent, and return it to counsel for the plaintiff. This practice does not justify an hourly fee or the sums demanded by Mr. Kestenbaum.
The principals here should have obviated the resort to judicial resolution or motion practice. This Court awards Mr. Kestenbaum the sum of $650.00, and an additional $45.00 for the costs of the motion in applying for additional fees. The motion is granted only to the extent indicated herein.
The foregoing constitutes the decision, order, and opinion of the Court. Dated: May 2, 2017 Jamaica, New York Honorable Salvatore J. Modica J.S.C.