ESTATE OF NICHOLAS v. MARSH, Deceased

ESTATE OF NICHOLAS v. MARSH, Deceased (1980/88) — BNY Mellon, N.A., successor to The Bank of New York, petitioner in a proceeding to settle its second account as executor of the will of Nicholas v. Marsh, has moved for leave to amend its petition — and, accordingly, its account — and the issuance of a supplemental citation. Petitioner, in its proposed amended petition, would (1) request allocation of its counsel fees against the share of Adrienne Marsh Lefkowitz, decedent's now deceased daughter (see Matter of Hyde, 15 NY3d 179 [2010]), and (2) redesignate its account, which was filed as a final account covering the period from August 1, 1996 to September 30, 2005, as a "Second Intermediate Account," in light of counsel fees incurred since September 30, 2005 in connection with litigation in this and other courts. The Los Angeles County Public Administrator, as administrator of Lefkowitz's estate, has not responded to the motion. Loretta M. Fine and Lauren Fine, decedent's daughter and granddaughter, respectively, and Claudia M. Appelbaum, decedent's other surviving daughter, support the motion, but, nevertheless, have crossmoved. The Fines request that, if the court denies the motion with respect to allocation of legal fees, they be granted leave to object to the current proposed allocation of counsel fees against the residuary. Appelbaum seeks the same relief, except that she does not condition her request on the court's denying petitioner's motion. The other person interested in the estate — Julie Lefkowitz, for whom the Los Angeles County Public Guardian was appointed conservator on June 1, 2010 — has not, as yet, appeared in the proceeding.

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ESTATE OF NICHOLAS v. MARSH, Deceased (1980/88) — BNY Mellon, N.A., successor to The Bank of New York, petitioner in a proceeding to settle its second account as executor of the will of Nicholas v. Marsh, has moved for leave to amend its petition — and, accordingly, its account — and the issuance of a supplemental citation. Petitioner, in its proposed amended petition, would (1) request allocation of its counsel fees against the share of Adrienne Marsh Lefkowitz, decedent’s now deceased daughter (see Matter of Hyde, 15 NY3d 179 [2010]), and (2) redesignate its account, which was filed as a final account covering the period from August 1, 1996 to September 30, 2005, as a “Second Intermediate Account,” in light of counsel fees incurred since September 30, 2005 in connection with litigation in this and other courts. The Los Angeles County Public Administrator, as administrator of Lefkowitz’s estate, has not responded to the motion. Loretta M. Fine and Lauren Fine, decedent’s daughter and granddaughter, respectively, and Claudia M. Appelbaum, decedent’s other surviving daughter, support the motion, but, nevertheless, have crossmoved. The Fines request that, if the court denies the motion with respect to allocation of legal fees, they be granted leave to object to the current proposed allocation of counsel fees against the residuary. Appelbaum seeks the same relief, except that she does not condition her request on the court’s denying petitioner’s motion. The other person interested in the estate — Julie Lefkowitz, for whom the Los Angeles County Public Guardian was appointed conservator on June 1, 2010 — has not, as yet, appeared in the proceeding.

A threshold issue, the retroactivity of the Court of Appeals’ holding in Matter of Hyde, 15 NY3d 179 (2010), supra, is disposed of easily. The ruling, by its own terms — “remit to the Surrogate’s Court for de novo consideration of allocation of the trustees’ counsel fees” (id. at 182) — contemplates retroactive application.

ESTATE OF NICHOLAS v. MARSH, Deceased

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