IN THE MATTER OF THE APPLICATION OF E.F., AS GUARDIAN OF THE PROPERTY OF R.J.F., INFANT FOR LEAVE TO WITHDRAW FUNDS FOR THE SUPPORT, MAINTENANCE OR EDUCATION OF THE INFANT (13/1287) — The petitioner, the mother and guardian of the property of the infant, submits this application, as amended, for leave i) to deposit the infant’s pro rata share of the annual rental income derived from a cooperative apartment (the co-op), less the infant’s pro rata share of maintenance therefor and ii) to withdraw a lump sum of $7,500.00 from the infant’s guardianship account. The value of the infant’s property is currently $39,468.29, and the petitioner asserts that the funds sought to be withdrawn are intended as reimbursement for legal fees she has incurred in connection with determining ownership of the co-op and preparation of her account as guardian.The infant’s father died on November 15, 2012, intestate and survived by two minor children, the infant and his sister, as his sole distributees. The decedent and the petitioner owned the co-op shares as tenants in common; thus, the infant and his sister each hold a one-quarter ownership interest in the co-op.The petitioner asserts that the coop was rented from July 15, 2015, to August 1, 2016, at the rate of $2,400.00 per month. On August 1, 2016, the lease was renewed for one year at the rate of $2,435.00 per month. The petitioner asserts that she has deposited the rental income, including the infant’s share thereof, into her personal account. She also asserts that she has paid all monthly maintenance, in the amount of $612.00 per month, from her personal funds.The infant’s share of the rental income for the period from July 15, 2015, to July 31, 2016, is $7,200.00, and for the period from August 1, 2016, through June 13, 2017 (the end of the petitioner’s accounting period) is $7,291.88, for a total of $14,491.88. The infant’s share of the monthly maintenance charges paid for those periods totals $3,672.00. The petitioner initially sought leave of the court to deposit the infant’s pro rata share of rental income, less his pro rata share of maintenance, into the guardianship account, for a total deposit of $10,821.88; however, on October 6, 2017, the petitioner submitted an affidavit stating that she has deposited the entire amount of rental income attributable to the infant’s ownership share into the guardianship account, which with interest accrued equals $15,710.72. The petitioner submits documentary proof of the ownership of the co-op shares, the lease for the co-op, the maintenance payments, the rental deposits and the deposit of the infant’s share into the guardianship account.The petitioner also seeks leave to continue to collect and deposit the rental income as a lump sum into her personal account, making quarterly deposits to the infant’s accounts. She asserts that it is too cumbersome for the co-op tenants to issue three separate checks, one for each of the petitioner, the infant’s and his sister’s ownership interests, every month. She further asserts that separate monthly deposits into the guardianship account are burdensome, as the Court requires each separate deposit into the account to be authorized by the Clerk of the Guardianship Department. In the alternative to quarterly deposits, she requests leave to deposit the rent checks into her personal account, and then deposit the infant’s pro rata share directly into his guardianship account without the endorsement of the Court.The Court is sympathetic to the challenges of co-ownership presented in these circumstances, and acknowledges the petitioner’s scrupulous record-keeping with respect to rental income collected, interest accrued and maintenance paid.Accordingly, the petitioner’s request for relief is granted, and subject to review upon submission of her annual accounting, the Court directs that the petitioner may collect the co-op rental income directly each month, deposit said income into her personal account, and make monthly deposits of the infant’s proportionate share into his guardianship account without the endorsement of the Court. Further, the petitioner is granted leave to withdraw the lump sum of $3,672.00 to reimburse herself for the infant’s proportional share of the co-op maintenance fees which she has paid on his behalf.The petitioner also requests leave to withdraw a lump sum in the amount of $7,500.00, for reimbursement of legal fees incurred in relation to the infant’s ownership interest in the co-op, and the preparation of the instant petitioner and account for the 2016 and 2017 terms. It is well-established that “[f]ees for necessary legal services may be paid from the funds of an…infant.” In re KEB, 2007 N.Y. Misc. LEXIS 7483 (Surr. Ct. Westchester County 2007). The Court bears the responsibility of determining the reasonable value of such fees, and “this responsibility is heightened in a case such as this, where the fees are being paid out of the funds of a person who is not competent to scrutinize the application on his or her own behalf.” In re Aguilo, NYLJ, August 26, 1996, at p.4 (col.5) (Surr. Ct. Kings County). The Court must consider factors such as the time and labor expended, the difficulty of the questions involved and the skills necessary the issues presented, counsel’s experience, ability and reputation, the amount involved, the customary fee charged for such services, and the results obtained. See generally Matter of Freeman, 34 N.Y.2d 1 (1974); Matters of Potts, 213 App. Div. 59 (4th Dep’t 1925), aff’d 241 N.Y. 593 (1925).The petitioner has included an affidavit of legal services from her counsel, which reflects that work was performed by a senior partner, a senior associate, two paralegals and a fiduciary accountant. The affidavit of legal services details the extent of the work performed, and includes time-contemporaneous billing records. The total value of time billed is $27,472.50; however, counsel has discounted this amount as a courtesy to the petitioner, and seeks a lesser award of $15,000.00, to be split equally between the infant and his sister.A review of the affidavit of legal services and attached records reveals that counsel provided services to the petitioner in her individual capacity as well as in her capacity as guardian of the infant’s property. The records also reveal services rendered for the decedent’s estate, and the Court is unable to determine which time entries are attributable solely to the instant petition and account. The Court also notes that, while the account filed was for two years of rental income and was thus more extensive than ordinary, in general annual accounts are able to be prepared by pro se individuals without benefit of counsel. Finally, an award of $7,500.00 in legal fees for two years of accounts constitutes approximately one-half of the funds deposited on the infant’s behalf. The infant’s funds are not bounteous, and the petitioner has not submitted any evidence regarding her employment, financial status or ability to pay the legal fees personally.Accordingly, on the papers submitted, the petitioner’s request for leave to withdraw a lump sum of $7,500.00 to reimburse herself for legal fees is denied.This constitutes the decision and order of the Court.The Clerk of the Court is directed to mail a copy of this decision and order to the petitioner.Date: December , 2017Brooklyn, New York
