Opinion
1710, 1710A
October 30, 2003.
Order, Surrogate's Court (Renee Roth, S.), entered on or about January 18, 2001, which, in a proceeding for judicial settlement of a final account, insofar as appealed from, sua sponte removed appellant Sica as guardian ad litem for respondents infants, unanimously affirmed, without costs. Decree, same court and Surrogate, entered on or about December 12, 2001, insofar as appealed from, awarding appellant Sica $10,000 as compensation for his services as guardian ad litem and approving a settlement between respondents infants and respondents charities, unanimously affirmed as to the fee award, and the appeal therefrom otherwise unanimously dismissed, all without costs.
Marilyn G. Ordover, for respondents-respondents.
Melvin F. Greenberg, for respondent-appellant.
John Sebastian Vaneria, for former guardian ad litem-appellant,
Susan F. Bloom, for guardian ad litem-respondent.
Before: Andrias, J.P., Saxe, Williams, Friedman, JJ.
The Surrogate properly removed appellant as guardian ad litem based upon a finding, amply supported by the record, that his "beclouded view of the facts" and other derelictions were jeopardizing the infants' interests (see Matter of Ford, 79 A.D.2d 403, 406; DeForte v. Liggett Meyers Tobacco Co., 42 Misc.2d 721, 723). Neither notice nor a hearing was required since the removal was done by the Surrogate sua sponte (cf. Matter of Brown, 157 A.D.2d 978; Mullins v. Saul, 130 A.D.2d 634), and not at the request of a party (e.g. Matter of Ford,supra). In view of appellant's failure to provide adequate time records, and the time he spent on matters that did nothing to advance the infants' interests, it cannot be said the award for his services was unreasonable (cf. Matter of Burk, 6 A.D.2d 429; Matter of Slade, 99 A.D.2d 668).
Appellant Lockwood, the decedent's widow, lacks standing to appeal the decree's approval of the settlement. Although she was cited and received process on the infants' behalf (see SCPA 307), she is not a judicially appointed guardian, and therefore cannot appear on their behalf (see SCPA 103; 401; 402; Matter of Maroney, 20 A.D.2d 678). Nor does she herself have any interest in the trust remainder, the subject of the settlement (see Matter of Richmond County Socy. For Prevention of Cruelty to Children, 11 A.D.2d 236, 239,affd 9 N.Y.2d 913, appeal dismissed and cert denied 368 U.S. 290; Isham v. New York Assn. for Poor, 177 N.Y. 218). In any event, were we to review, we would find that the guardian ad litem has sole authority to represent the infants and negotiate a binding settlement on their behalf, that appellant's consent to the settlement is not required, and that absent a showing of fraud, not made here, the settlement should not be set aside (see SPCA 406, see Matter of Shubert, 110 Misc.2d 635, 644-645).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.