The following named papers numbered 1 to 3 submitted on this Motion to Restore and Cross Motion for Guardian ad Litem Fees on May 13, 2019Papers NumberedPetitioner’s Motion to Restore 1Guardian ad Litem’s Cross Motion for Compensation 2Guardian ad Litem’s Opposition to Motion 3 The petitioner moves for an order restoring this matter to the calendar for the limited purpose of either vacating this court’s entire order, dated February 4, 2019, or in the alternative, vacating the portion thereof which requires the petitioner to pay the guardian ad litem (“GAL”)’s legal fees. In the subject order, this court determined that the respondent, Neil E. Thompson, was under a disability needing the appointment of a GAL. Also, the court, on its own initiative, appointed Louis B. Imbroto, Esq., to serve as the respondent’s guardian ad litem, pursuant to CPLR 1202(a). In the order, the court stated that the petitioner was “responsible for paying reasonable compensation to the guardian ad litem, as determined by the court, pursuant to CPLR1204.” Mr. Imbroto opposes the instant motion and cross-moves for an order, pursuant to CPLR 1204, granting an award for reasonable compensation as guardian ad litem. The petitioner’s motion and Mr. Imbroto’s cross motion are determined as follows.The relevant facts are as follows. On December 14, 2018, the petitioner commenced the instant holdover proceeding. On February 4, 2019, the court entered an order, as set forth above, appointing Mr. Imbroto as guardian ad litem for the respondent. On March 26, 2019, the parties entered into a stipulation, by way of their respective counsel, in which the respondent consented to, inter alia, a final judgment of possession and issuance of a warrant of possession, which was to be stayed through June 28, 2019, for the respondent to vacate the premises. On March 28, 2019, Mr. Imbroto sent petitioner’s counsel an email containing an invoice for the services he rendered as guardian ad litem.As provided by CPLR 1202(a), “[t]he court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative….” Also, pursuant to CPLR 1204:“A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person’s other property. No order allowing compensation shall be made except on an affidavit of the guardian or his attorney showing the services rendered.”In the instant matter, petitioner’s counsel acknowledges that he received the subject order on February 4, 2019. He further states that he only skimmed the order and did not see the provision that the petitioner would be required to pay the legal fees of the guardian ad litem pursuant to CPLR 1204. He further argues that since the order was issued by the court sua sponte, the petitioner did not have an opportunity to oppose the inclusion of this provision. However, petitioner’s counsel fails to explain why he waited almost two (2) months to challenge same. Regardless, as previously stated, the court may sua sponte allow a guardian ad litem to be paid in whole or part by any other party (see CPLR 1202[a] and 1204), and petitioner’s attorney has not provided any legal authority in support of the instant motion. Accordingly, the petitioner’s motion is denied in all respects.In his cross motion, Mr. Imbroto asserts that he expended 15.9 hours on this matter, and that his hourly billing rate is $375.00 per hour, for a total $5,962.00. He also separately sets forth each of the dates, the amount of time expended and a description of the services rendered. In his motion, petitioner’s counsel argues these fees are “way out of line” and that guardian ad litems in the City of New York “are paid a $675.00 flat fee whether they are appointed by motion or sua sponte” (Notice of Motion, 6).“In determining reasonable compensation, the responsibility, time and attention required, the result obtained, and the funds available to the person who must bear the cost of the guardian ad litem must be considered” (Alias v. Olahannan, 15 AD3d 424, 425 [2d Dept 2005]).Based upon all of the circumstances presented herein, the court determines that the guardian ad litem’s fee should be reduced to a rate of $250.00 per hour. Accordingly the petitioner shall pay to Mr. Imbroto the amount of $3,975.00, representing 15.9 hours at a rate of $250.00 per hour, in reasonable compensation for services rendered.So Ordered.Dated: June 26, 2019
