Opinion
2014-07-9
In the Matter of Sam HARRISON, deceased. Gerald N. Daffner, nonparty-appellant.
Gerald N. Daffner, Hempstead, N.Y., nonparty-appellant pro se.
In a proceeding to judicially settle an account, the nonparty Gerald N. Daffner appeals, as limited by his notice of appeal and brief, (1) from so much of an order of the Surrogate's Court, Nassau County (McCarty III, S.), dated December 17, 2012, as fixed the reasonable value of the legal services provided to the former executor at the total sum of only $18,500, and directed that all sums in excess of $18,726.03, which included $226.03 for disbursements, be refunded to the estate, and (2) from so much of an order of the same court dated March 25, 2013, as denied his request to reconsider its determination as to the reasonable value of the legal services provided to the former executor.
ORDERED that on the Court's own motion, the notice of appeal is deemed to be by nonparty Gerald N. Daffner ( see CPLR 2001; Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 775 N.Y.S.2d 753, 807 N.E.2d 864); and it is further,
ORDERED that on the Court's own motion, the notice of appeal from the orders dated December 17, 2012, and March 25, 2013, is deemed to be an application for leave to appeal from these orders, and leave to appeal is granted ( see CPLR 5701[c] ); and it is further,
ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.
“The Surrogate's Court bears the ultimate responsibility for deciding what constitutes a reasonable attorney's fee” (Matter of Goliger, 58 A.D.3d 732, 732, 871 N.Y.S.2d 689;see Matter of Massey, 73 A.D.3d 1179, 900 N.Y.S.2d 892). Such determination is a matter within the sound discretion of the court regardless of the existence of a retainer agreement or whether all the interested parties have consented to the amount of fees requested ( see Matter of Massey, 73 A.D.3d 1179, 900 N.Y.S.2d 892;Matter of Katz, 55 A.D.3d 836, 837, 869 N.Y.S.2d 542;Matter of Tendler, 12 A.D.3d 520, 521, 784 N.Y.S.2d 604). “In evaluating what constitutes a reasonable attorney's fee, factors to be considered include the time and labor expended, the difficulty of the questions involved and the required skill to handle the problems presented, the attorney's experience, ability, and reputation, the amount involved, the customary fee charged for such services, and the results obtained” (Matter of Goliger, 58 A.D.3d at 732, 871 N.Y.S.2d 689 [internal quotation marks omitted]; see Matter of Massey, 73 A.D.3d at 1179–1180, 900 N.Y.S.2d 892;Matter of Mergentime, 207 A.D.2d 452, 453, 615 N.Y.S.2d 760).
In this case, contrary to the nonparty-appellant's contention, the Surrogate's Court did not improvidently exercise its discretion in awarding an attorney's fee in the sum of $18,500 (plus $226.03 in disbursements), and in directing a refund of all sums paid in excess of that amount to the estate ( see Matter of Massey, 73 A.D.3d at 1180, 900 N.Y.S.2d 892;Matter of Goliger, 58 A.D.3d at 733, 871 N.Y.S.2d 689;Matter of Tendler, 12 A.D.3d at 521, 784 N.Y.S.2d 604;Matter of Bobeck, 196 A.D.2d 496, 497, 600 N.Y.S.2d 758). SKELOS, J.P., LOTT, ROMAN and LaSALLE, JJ., concur.