Opinion
2013-216/C
02-03-2021
PETITION OF attorney, Joram J. ARIS, Esq., former counsel to Robert W. Basso, Executor of the Estate of Grace Basso, Deceased. For an Order pursuant to SCPA § 2110 fixing and determining his fees and costs.
Joram J. Aris (disbarred), Petitioner pro se Robert W. Basso, Respondent/Executor pro se
Joram J. Aris (disbarred), Petitioner pro se
Robert W. Basso, Respondent/Executor pro se
Timothy P. McElduff Jr., S.
The following papers were read and considered regarding Joram J. Aris, Esq.'s application to fix his attorney's fees and costs pursuant to SCPA § 2110 :
1. Verified Petition of Joram J. Aris, Esq. filed July 22, 2019 together with annexed exhibits;
2. Verified Objections of Robert W. Basso filed on October 20, 2020 together with annexed exhibits;
3. Reply of Joram J. Aris, Esq. filed on November 25, 2020 together with annexed exhibits.
Preliminary Note
The above-referenced submissions by both parties fail to contain exhibit tabs pursuant to this part's rules, despite containing over 400 pages of exhibits. Furthermore, despite the Court's separate, express request for an additional copy of the submissions with tabbed exhibits, neither party supplied one. The parties are hereby cautioned that future failures to comply with the Court's rules or requests may result in the denial of applications.
Regardless, the Court has reviewed all submissions and holds that the petition is granted in part and denied in part for the reasons discussed below.
Background
Under File No. 2013-216, Petitioner Robert W. Basso, by his attorney, Joram J. Aris, Esq., petitioned to probate the Will of Grace Basso. The Will left the "first 50%" of the Decedent's estate to Robert W. Basso (son) and the "remaining 50%" to be split 50-50 between Robert W. Basso and Sally Trigian (daughter). Epifanio Gianni (son) was expressly disinherited under the Will. Mr. Gianni filed objections to probate on the grounds of capacity, due execution and undue influence. The parties litigated the proceeding through a number of applications to extend preliminary letters testamentary, paper discovery, SCPA § 1404 examinations of four individuals and summary judgment motion practice. Petitioner and his counsel were ultimately successful.
Under File No. 2013-216/A, Petitioner filed a construction proceeding. The Petitioner's application for a proposed Order to Show Cause to commence the proceeding was found to be duplicative of the probate proceeding and, therefore, denied by the Court.
Under File No. 2013-216/B, Petitioner commenced a discovery proceeding to recover property of the estate. Petitioner alleged that certain money/funds of the estate had been misappropriated. The parties litigated the proceeding through the initial petition, answer, reply and sur-reply. Ultimately, the parties settled and discontinued the proceeding, with prejudice, before any further motion practice or dispositive order was made.
Now, under File No. 2013-216/C, Petitioner Robert W. Basso's attorney, Joram J. Aris, Esq., seeks Court approval of his attorney's fees and costs pursuant to SCPA § 2110.
The Parties' Contentions
Mr. Aris seeks attorney's fees in the amount of $288,355.92 plus $12,205.92 in related costs/disbursements. Mr. Aris claims that he drafted certain billing records (Exhibit B to Petition) and delivered them to Mr. Basso, who received them and never objected to them.
Mr. Basso contends that he never received or approved Mr. Aris' billing records. He also argues that the size of the total fee (approximately $300,000) is unconscionable in comparison to the size of the estate (a house sold for $439,000). Further, Mr. Basso argues that many of Mr. Aris' fees are executorial in nature and, thus, not compensable. Finally, Mr. Basso acknowledges that Mr. Aris is due a fee, but it should be in the amount of $12,000.
Analysis
It is well settled that the decision to award attorney's fees, and the determination as to their reasonableness, lies within the sound discretion of the Surrogate. Matter of Freeman, 34 NY2d 1, 10 (1974) ; Matter of Potts, 123 Misc. 346 (Sur. Ct., Columbia Co. 1924)affd. 213 AD 59, 62 (4d Dept.)affd. 241 NY 593 (1925). In exercising that discretion, the Court is required to consider, among other things, the following factors: (1) the time and labor expended by counsel; (2) the parties' retainer agreement; (3) the complexity of the issues; (4) the lawyers' experience; (5) the fees customarily charged; (6) the size of the estate/amounts involved; and (7) the results obtained. See, e.g., Matter of Freeman, 34 NY2d at 10 ; Matter of Potts, 123 Misc. at 346 ; In re Talbot , 84 AD3d 967 (2d Dept. 2011) ; In re Barich , 91 AD3d 769 (2d Dept. 2012).
Ultimately, however, the Surrogate bears the responsibility of deciding what constitutes reasonable legal compensation and the allocation thereof, regardless of the existence of a retainer agreement or whether all interested parties have consented to the amount of fees requested. See In re Hyde, 15 NY3d 179 (2010) ; In re Beneware, 86 AD3d 687 (3d Dept. 2011) ; Matter of Verplanck , 151 AD2d 767 (2d Dept. 1988) ; Matter of Kelly, 187 AD2d 718 (2d Dept. 1992) ; Matter of McCann, 236 AD2d 405 (2d Dept. 1997).
Reimbursement for expenses is similarly within the discretion of the Surrogate. Matter of Estate of Graham , 238 AD2d 682, 687 (3d Dept. 1997).
While attorneys may recover, for example, the time and value of a paralegal's services [ see SCPA § 2110(4) ], attorneys may not recover fees for executorial tasks (i.e., those tasks capable of being performed by a layperson) when they are included as part of the attorney's fee request. Matter of Phelan , 173 AD2d 621, 622 (2d Dept. 1991). Classifying a particular service as being legal in nature does not necessarily mean that it is compensable as an attorney's fee. Matter of Estate of Passuello , 184 AD2d 108, 111 (3d Dept. 1992).
Furthermore, the Surrogate is not obligated to accept the face value of the attorney's summary of the hours expended or the materials submitted in support, regardless of their volume. Matter of Bobeck , 196 AD2d 496, 497 (2d Dept. 1993) ; Matter of Kelly , 187 AD2d 718, 719 (2d Dept. 1992). Courts have repeatedly emphasized the significance of contemporaneously maintained time records as a component of an attorney's affirmation of legal services and have given little weight to "after the fact" estimations of time expended. Matter of Phelan , 173 AD2d 621, 622 (2d Dept. 1991).
Last, but not least, the petitioning attorney has the burden of establishing that the requested attorney's fees were necessary, fair and reasonable. Matter of Estate of Passuello , 184 AD2d 108, 111 (3d Dept. 1992) ; Matter of Estate of Quade , 121 AD2d 780, 782 (3d Dept. 1986).
Here, Mr. Aris has not made any particular argument or showing to carry his burden of establishing that his substantial amount of fees were necessary, fair and reasonable. Certainly, some amount was necessary due to the objections filed and the protracted litigation of the will contest. However, fees in the approximate amount of 68% of the gross value of the estate are not fair or reasonable in the absence of an adequate explanation.
Mr. Aris solely relies upon his purported billing records to establish his entitlement to compensation; however, there are several problematic issues with his billing records. First, his billing records are not in the form of timesheets, bills, invoices, statements or other manner of timekeeping records and billing commonly used in the legal profession. Other than Mr. Aris' conclusory allegation, there is no indication that the purported billing records were ever mailed or otherwise transmitted to Mr. Basso. Furthermore, there is no indication that Mr. Aris' billing records or summaries of time were contemporaneously recorded or maintained. Contrarily, there are several indications that the billing records were prepared after-the-fact: (1) they are in a Microsoft Word document format, (2) they contain a voluminous narrative reconstruction of past events/motives and (3) they are not in any chronological order, jumping backward and forward in time. Additionally, the billing records contain express references to the contents of certain file folders. This tends to show that Mr. Aris reviewed each file folder that he maintained for Mr. Basso's matters and then drafted the narrative/billing record, accordingly, as he went. As a result, the Court is well within its discretion to not accept the face value of the attorney's summary of the hours expended or the materials submitted in support, regardless of their volume.
As Mr. Basso points out, Mr. Aris' billing records are replete with numerous and enormous entries for executorial tasks, charged at Mr. Aris' attorney rate of $300 per hour. Mr. Aris' executorial tasks included (1) acting as his own process server and billing for extensive travel and stakeout time, (2) billing for time spent physically driving/travelling to and from his office in the Bronx to Orange County merely to hand-file documents at Surrogate's Court or hand-deliver litigation papers to opposing counsel or physically pick-up documents [at 4 to 7 hours per trip, on dozens of occasions] instead of simply utilizing the mail or other delivery services, (3) billing for secretarial tasks [e.g., preparing the mail, making photocopies, etc.] and (4) billing to drive to a notary public.
Finally, many of Mr. Aris' fees are unreasonable as a result of being excessive, duplicative, unnecessary or altogether improper. By way of example, a particularly provocative billing entry in the history of his attorney's fees was a 1.5-hour charge (at $300.00/hour) to draft a letter demanding the return of $2.00 from a notary public.
Since there was no discernable or helpful order to Mr. Aris' billing records as submitted under his Exhibit B, the Court analyzed each page of the billing records, in their attached sequence, and adjusted the same, as follows:
Page I: 0.5 hour of potentially reasonable time entries;
Page II: 3.75 hours of potentially reasonable time entries;
Page III: 3.0 hours of potentially reasonable time entries;
Page IV: 0.75 hour of potentially reasonable time entries;
Page I: 6.0 hours of potentially reasonable time entries; entry on 4/2/13 for 5 hours of time to write 3 letters was excessive [-3.0 hours]; entry on 4/17/13 for 5 hours to draft supplemental kinship chart and driving to file it at court was excessive and executorial [-4.0 hours];
Page III: 9.75 hours of potentially reasonable time entries; entry 5/3/15 driving to file papers was executorial and unnecessary [-5.0 hours];
Page IV: 1.0 hour of potentially reasonable time entries; entry on 5/17/13 for secretarial work at attorney rate is executorial/unreasonable [-4.0 hours]; entry on 6/8/13 for performing process server work at attorney rate was executorial/unreasonable [-6.0 hours];
Page V: 5.25 hours of potentially reasonable time entries; entries on 6/11/13 and 6/20/13 for performing process server work at attorney rate was executorial/unreasonable [-19.0 hours]; entry on 6/21/13 drafting affidavits of service for said process service activities was unreasonable/unnecessary [-4.0 hours];
Page VI: 12.25 hours of potentially reasonable time entries; entry on 7/11/13 for letter to demand return of $2.00 notary fee was unreasonable/unnecessary [-1.5 hours]; entry on 7/21/13 time for mailing letter executorial/unreasonable [-1.25 hours]; entry on 7/31/13 for supplemental application for preliminary letters was excessive [-3.0 hours];
Page VII: 8.75 hours of potentially reasonable time entries; entries on 8/22/13, 10/12/13, 10/6/13, 10/18/13, 12/5/13 were excessive [-1.0];
Page VIII: costs/disbursements addressed infra;
Page IX: 5.75 hours of potentially reasonable time entries;
Page X: 13.0 hours of potentially reasonable time entries; entry on 3/14/14 executorial/unreasonable for process service activities [-5.0 hours]; 5/6/14 secretarial tasks [-1.25];
Page XI: 10.25 hours of potentially reasonable time entries; 5/24/14 and 6/17/14 driving to file documents [-10.0 hours];
Pages XII-XIII: 23.5 hours of potentially reasonable time entries; researching family names, judgments and marriage licenses was unreasonable/unnecessary to estate litigation [-39.0 hours];
Page 1: 8.0 hours of potentially reasonable time entries; 10/19/14 drive to file documents [-7.0 hours];
Page 2: 2.0 hours of potentially reasonable time entries;
Page 3: 8.25 hours of potentially reasonable time entries; 6/8/15 driving to obtain land records was unreasonable/unnecessary [-10.0 hours]; 9/13/16 driving to court to obtain certified letters was unreasonable/unnecessary [-4.5 hours];
Page 4: 3.25 hours of potentially reasonable time entries; 11/14/16 & 12/14/16 driving to court to purchase certified letters and driving to client to deliver letters was unreasonable/unnecessary [-9.5 hours];
Page I: 7.25 hours of potentially reasonable time entries; 4/16-17/13 google searches were excessive [-5.0 hours]; 5/17/13 time spent mailing was executorial/unreasonable [-4.0 hours];
Page II: 0.25 hour of potentially reasonable time entries; 6/19/13 map quest searches and delivery of papers unreasonable/unnecessary/executorial [-2.5 hours];
Page 1: 4.0 hours of potentially reasonable time entries;
Page 2: 15.5 hours of potentially reasonable time entries; 9/22-24, 29/14 legal research unspecified or duplicative [-20.0]; 12/8/14, 6/11/15, 11/12/15 driving to file documents and obtain copies was executorial, excessive, unreasonable or unnecessary [-17.0 hours];
Page 3: 5.0 hours of potentially reasonable time entries; 12/17/15, 9/13/15, 12/14/16 driving to court to obtain documents and file documents executorial, excessive, unreasonable or unnecessary [-13.0 hours];
Page 4: 0.5 hours of potentially reasonable time entries; 12/8/14, 12/17/14, 11/19/14, 11/25/14 driving to court to file documents [-18.5 hours]; 11/19/14 hour entry for drafting notice of entry and four hours for drafting one-page letter was excessive [-4.5 hours];
Page 5: 1.0 hour of potentially reasonable time entries; 12/14/16 correspondence to/from the court was excessive [-5.0 hours]; 6/29/17 driving to file the stipulation of discontinuance [-4.5 hours];
Page 6: 2.0 hours of potentially reasonable time entries; 9/13/17 trip to clerk's office unnecessary or excessive [-4.0 hours];
Page 1: 4.75 hours of potentially reasonable time entries; 10/16/13 driving to court for adjourned conference unnecessary/unreasonable [-5.0 hours];
Page 2: 7.0 hours of potentially reasonable time entries; court conference was on 12/18/13, not 12/4/13 as entered [-5.0 hours];
Page 3: 6.0 hours of potentially reasonable time entries: 3/7/14 several hours spent reading two short deposition transcripts was unreasonable/excessive [-6.0 hours]; 3/7/14 execution and notarization of transcript time was excessive and legal research was unspecified [-1.0 hour];
Page I: 2.75 hours of potentially reasonable time entries; 9/9/13, 10/1/13, 10/10/13, 10/21/13, 11/27/13 hours of file review were excessive/unreasonable, photocopying was executorial, driving to file documents was unnecessary/unreasonable, unspecified legal research [-17.0 hours];
Page II: 3.5 hours of potentially reasonable time entries; 3/14/14 hand delivery/service of deposition transcripts unnecessary/unreasonable [-5.0 hours]; 3/18/14, 1/13/15 writing and re-issuing a check to pay stenographer unreasonable [-0.75 hour]; 2/13/14 reviewing deposition transcript excessive [-3.0 hours]; 2/14-18, 21, 23, 24 drafting errata sheets excessive [-20.0 hours]; 3/15/14 final corrections of transcript were excessive [-4.0 hours];
Page III: 0.0 hours of potentially reasonable time entries; 3/14/14 hand delivery/service of deposition transcripts unnecessary/unreasonable/duplicative [-5.0 hours];
Page 1: 0.0 hours of potentially reasonable time entries; repeat of duplicative entries [-19.0];
Page 2: 8.75 hours of potentially reasonable time entries: 2/25-28 draft/review of errata sheets of Basso deposition was excessive [-9.5 hours];
Page 3: 0.25 hour of potentially reasonable time entries; 3/14/14 hand delivery/service of deposition transcript was unnecessary, unreasonable or duplicative [-5.0 hours];
Page I: 14.5 hours of potentially reasonable time entries; 10/10/13 photocopying executorial or unreasonable [-3.0 hours]; 10/21/13 driving to notary unreasonable, unspecified legal research [-3.0 hours];
Page II: 7.25 hours of potentially reasonable time entries; 9/22/13 photocopying executorial or unreasonable [-6.0 hours]; 10/21/13 driving to notary, unspecified legal research [-4.0 hours];
Page III: 2.0 hours of potentially reasonable time entries; 11/27/13 driving to file documents is duplicative, unnecessary or unreasonable [-5.0 hours];
Page 1: 10.5 hours of potentially reasonable time entries; 10/13-14/13 time spent drafting discovery demands was excessive/unreasonable [-14.5 hours]; 10/21/13 driving to notary and performing unspecified legal research [-3.0 hours];
Page 2: 11.0 hours of potentially reasonable time entries; 10/1/14 time for file review was excessive/unreasonable [-3.0 hours]; 10/2/14 travel to law library excessive/unreasonable [-2.0 hours];
Page 3: 2.25 hours of potentially reasonable time entries; 2/4/15 time for cover letter drafting and service was excessive/unreasonable [-2.75 hours];
Page 2: 1.5 hours of potentially reasonable time entries; 11/27/13 driving to file documents unnecessary/unreasonable [-5.0 hours]; 11/27/13 client meeting duplicative [-2.0 hours]; 12/18/13 court appearance and client meeting duplicative [-6.5 hours]; driving to file documents unnecessary/unreasonable [-5.0 hours]; 1/8/15 review time duplicative/unreasonable [-2.0 hours];
Page 3: 21.0 hours of potentially reasonable time entries; 3/10/14 review/execution time for petition/affidavit excessive/unreasonable [-7.0 hours];
Page 4: 6.5 hours of potentially reasonable time entries;
Page 5: 5.75 hours of potentially reasonable time entries; 9/3/14 receipt/review of reply excessive/unreasonable [-5.0 hours]; 5/14/14 time billed for service of papers excessive unnecessary/unreasonable [-5.0 hours]; drive to file motion papers [-6.0 hours]; noted "NB" time either non-billable or otherwise excessive/unreasonable [-87.0 hours];
Page 6: 8.0 hours of potentially reasonable time entries; 6/19/14 review of EPTL 3:2-1 annotations unspecified/excessive [-2.0 hours];
Page 7: 4.0 hours of potentially reasonable time entries; 7/9, 10, 11, 16/14 research with archivist and into prior litigations, graveyard trips unexplained, unnecessary to proceedings, unreasonable [-31.5 hours];
Page 8: 0.0 hours of potentially reasonable time entries; 7/18, 22, 23, 24, 29/14, archivist work unexplained, unnecessary to proceedings, unreasonable [-18.5 hours];
Page 9: 25.75 hours of potentially reasonable time entries; 8/2-8/14 work on reply papers was excessive/unreasonable [-77.0 hours];
Page 10: 7.0 hours of potentially reasonable time entries; 9/4/24 and 10/9/14 copying and service of reply papers executorial, driving to file papers unnecessary/unreasonable [-9.0 hours];
Page I: 46 hours of potentially reasonable time entries; 9/1-9/14 time for commuting to law library was unreasonable [-19.5 hours];
Page II: 0.5 hour of potentially reasonable time entries; 10/1, 9, 24/14 driving to file papers, service of reply papers unreasonable, unnecessary, unintelligible [-19.0 hours];
Page III: 0.0 hours of potentially reasonable time entries; 10/29/14 court appearance was duplicative [-7.0 hours];
Page 1: 11.0 hours of potentially reasonable time entries; 9/17, 22, 23/14 commuting to law library unreasonable [-4.5 hours]; 9/12, 24, 28/14 and 10/4, 6-8/14 duplicative affidavits [-22.0 hours];
Page 2: 0.0 hours of potentially reasonable time entries; drive to file documents unreasonable [-5.0 hours]; 10/29/14 court appearance duplicative [-7.0 hours];
Page I: 5.25 hours of potentially reasonable time entries; 10/14/15 commuting time unreasonable [-2.5 hours]; 10/17, 22, 23/15 process serving executorial [-16.5 hours];
Page 1: 4.25 hours of potentially reasonable time entries; 11/19/14 drive to court to pick-up documents unreasonable/unnecessary [-5.0 hours];
Page 2: 0.0 hours of potentially reasonable time entries; 12/8/14 drive to pay for certified letters unreasonable/unnecessary [-4.75 hours];
Page 3: 19.0 hours of potentially reasonable time entries; 6/2-4, 11/15 drive to pay for certified letters unreasonable/unnecessary, commuting time to research, unspecified research, driving to file document all unnecessary or unreasonable [-24.5 hours]; 7/15/15 copying, etc., at Staples executorial [-1.0 hour];
Page 4: 8.0 hours of potentially reasonable time entries; 10/16-22/15 prep of discovery demands was excessive/unreasonable [-4.0 hours]; 7/27/15 process service executorial [-9.0 hours]; 9/30/14 filing documents and appearing at court unnecessary/unreasonable [-5.0 hours]; 9/29/15 service of reply on attorney unnecessary/unreasonable [-6.0 hours];
Page 5: 1.0 hour of potentially reasonable time entries; drive to file documents unnecessary/unreasonable [-4.5 hours];
Page 6: 12.5 hours of potentially reasonable time entries; 1/8/16 noted "NB" time unspecified [-5.0 hours]; 1/11/16 drive to file documents [-5.0 hours];
Page 7: 3.25 hours of potentially reasonable time entries;
Page 8: 8.75 hours of potentially reasonable time entries;
Page 9: 4.5 hours of potentially reasonable time entries
In total, these charges must be reduced, as reflected above, by a total of 842.25 hours for work that was unnecessary and/or unreasonable on its face. After this reduction, 470 hours of time remains, which would result in fees in the amount of $141,000.00. However, in the context of this estate and in the presence of the non-contemporaneous, unconventional and non-reliable billing records presented here, such an award is simply not justified on this record and would be inequitable. Accordingly, the Court, in its discretion, awards Petitioner fees in the total amount of $35,000.00 for services rendered to this estate, which sum shall be recoverable from the estate.
Regarding costs and disbursements, Petitioner seeks reimbursement for $12,205.92, apart from alleged attorney's fees/legal fees. In its discretion, the Court declines to award costs or disbursements for tolls/travel, meals or witness fees. The witness fees purportedly charged to Mr. Basso (a total of $10,000 alleged to have been paid to two SCPA § 1404 exam witnesses) are particularly egregious. The witness fees are unsubstantiated and unexplained. It appears that Mr. Aris drafted the will and relatives of his (also with the last name Aris) were the witnesses to its execution and alleged to be due the witness fees. There is no proof that $10,000 was actually paid to the witnesses or that it was agreed to by Mr. Basso in advance. Contrastingly, the disbursements for filing fees, postage and stenographer bills are reasonable and recoverable from the estate.
Upon review of the record presented, the Court finds that Petitioner is entitled to reimbursement for costs and disbursements in the amount of $2,403.22.
Conclusion
Based upon the foregoing, it is hereby
ORDERED, that Petitioner's application is granted, as modified herein; and it is further
ORDERED, that Petitioner Joram J. Aris is hereby awarded reasonable attorney's fees in the amount of $35,000.00, together with disbursements of $2,403.22, for a total award of Thirty-Seven Thousand Four Hundred Three and 22/100 ($37,403.22) Dollars, which award the Court determines to be fair and reasonable compensation for such services in these proceedings; and it is further
ORDERED, that said sum shall be chargeable to, and payable from the general assets of the Estate; and it is further
ORDERED, that Executor Robert W. Basso shall take the necessary steps to close this Estate informally with the filing of receipts and releases and an affidavit of completion, or commence a proceeding to judicially settle his account, by no later than April 9, 2021.
This constitutes the Decision and Order of the Court.