These are two contested proceedings separately brought by the respondent’s caretaker and sister, each seeking to be appointed successor guardian of his person and property. On the March 19, 2019 continued date of a hearing, the parties and their counsel, as well as the guardian ad item appointed for the respondent and the respondent’s cousin who is the proponent and nominated executor of a testamentary instrument and trustee of a supplemental needs trust executed by the respondent’s father prior to his death in additional contested proceedings pending in the Surrogate’s Court, Westchester County, entered into a stipulation on the record in open court (the “March, 2019 stipulation”). The terms of the stipulation are, inter alia, as follows: (1) the caretaker’s guardianship petition is withdrawn; (2) the caretaker is to pay a certain sum to the fiduciary of the estate of the respondent’s father for use and occupancy of two apartments where she and her family reside in realty owned by the decedent and they are to vacate the premises on or before May 31, 2019; (3) the sister is to amend her application to seek appointment as sole guardian of the respondent’s person and the respective appointments of two cousins and a second cousin of the respondent as standby, first and second alternate standby guardians of the person; and, (4) one of the cousins and the guardian ad litem are to serve as co-guardians of the respondent’s property and will petition to establish a different supplemental needs trust to be funded with assets belonging to respondent and serve as co-trustees. Although the parties at that time represented that there was a global settlement in all proceedings pending in this court and the Westchester County Surrogate’s court, the court was thereafter informed that the caretaker retained new counsel and the probate and supplemental needs trust proceedings pending in Westchester County remain contested. That continued litigation does not impact the March, 2019 settlement which remains intact. Respective counsel for the sister, caretaker and the guardian ad litem served and filed affirmations of services, a decree and two counter decrees and the guardian ad litem filed opposition to both counsels’ fee applications. Pursuant to a decree of this court dated July 17, 1981, the respondent’s parents were appointed co-guardians of his person, the sister was appointed first alternate standby guardian and an aunt was appointed standby guardian. The decedent’s mother and the aunt died prior to 2012, and the father died on July 1, 2018. Per the amended cross-petition, the ward’s assets consist of approximately $1,000,000.00 including a $900,000.00 Knights of Columbus annuity and approximately $100,000.00 in cash on hand. The ward is also the beneficiary of separate testamentary and inter vivos supplemental needs trusts established by his deceased father which are being contested in the Surrogate’s Court, Westchester County. The assets of that estate principally consist of two multifamily dwellings located in Yonkers and the Bronx and de minimis cash which the father allegedly directed were to be transferred to the trustees of a supplemental needs trust for the ward’s benefit. Pursuant to a written stipulation dated December 13, 2018, the parties withdrew their separate requests for property guardianship, as it then appeared that the father previously established a supplemental needs trust for the respondent’s benefit, and the court appointed the guardian ad litem as temporary guardian of the respondent’s person. After certain testimony was presented at an initial hearing, the court appointed the sister as temporary co-guardian of his person along with the guardian ad litem (see Matter of Louis A. N., NYLJ, Dec. 21, 2018 at 23, col 1 [Sur Ct, Bronx County 2018]). In March of 2019, the court denied the caretaker’s attorney’s application seeking leave to withdraw and staying discovery (see Matter of Nappi, NYLJ, March 25, 2019 at 27, col 6 [Sur Ct, Bronx County 2019]). Thereafter, pursuant to the terms of the March, 2019 stipulation, the sister and the guardian ad litem jointly filed an amended petition seeking, inter alia, the following: the appointment of the sister as sole guardian of the respondent’s person; the appointment of the sister and the guardian ad litem as co-guardians of the respondent’s property which authority was to be restricted to establishing and funding a different supplemental needs trust; the property guardians are not obligated to file an account; dismissal of the caretaker’s guardianship petition with prejudice; the appointment of two cousins of the respondent as successor standby and successor first alternate standby guardians of the respondent’s person and property and a first cousin once removed as successor second alternate guardian of the person and property. As it appears to be in the best interests of the respondent, and the court is satisfied that the petitioners and the nominated successor standby guardian, and successor first and second alternate standby guardians are each qualified to assume the responsibility of serving as the respondent’s guardians, the sister and the guardian ad litem’s application is granted. Letters of successor guardianship of the person of the respondent shall issue to his sister, Mary C. N., who is also appointed successor co-guardian of his property jointly with the guardian ad litem. The respondent’s cousin, Adolfo C.N., is appointed successor standby guardian of the person of the respondent when the primary successor guardian of his person is no longer able to do so. He is also appointed successor standby guardian of the respondent’s property when the primary successor co-guardians of the property are no longer able to do so. Another cousin, Carlotta T., is appointed successor first alternate standby of the person and property of the respondent to serve when neither the primary guardian of the person, the primary co-guardians of the person and property, nor the successor standby guardian of the person and property are able to do so. A first cousin once removed, Liane M., is appointed successor second alternate standby guardian of the person and property to serve when none of the aforementioned successor guardians are able to do so. The property letters are restricted to establishing and funding an additional supplemental needs trust for the benefit of the respondent, and, the property guardians are relieved from the obligation of filing an account until further order of this court. The successor guardians shall assume the duties of their office subject to qualification and confirmation pursuant to SCPA 1757. The petition of the caretaker, Adriana D., is hereby marked “withdrawn with prejudice” pursuant to the terms of the March, 2019 stipulation. The letters of guardianship awarded to the ward’s deceased parents, standby guardianship awarded to a deceased aunt, first alternate standby guardianship and temporary guardianship are to be vacated in the order amending the decree dated July 17, 1981 settled by the guardian ad litem to be entered hereon. The sister’s attorney seeks $84,348.56 in legal services and $662 for out of pocket expenses. In support, he submits a retainer agreement dated December 18, 2018 that is signed by the sister, the ward’s cousin, who is the nominated fiduciary of the father’s estate as well as the designated standby guardian of the ward’s person and property, and also by the ward’s first cousin once removed who is the designated successor first alternate guardian of the person and property. The retainer agreement, inter alia, states that the firm’s hourly rate is $425.00 for primary counsel and $345.00 to $395.00 for associates, as well as paralegal’s $250.00 hourly rate…will not be “arbitrarily increased…however, in the event that such increase is sought, the clients are to be provided with a written notification of the increase at least thirty (30) days prior to the effective date of the increased rates.” In further support, he annexes copies of invoices detailing 211.06 hours were spent for legal services rendered from July 17, 2018 to May 31, 2019. The sister’s attorney continues that the ward’s cousin as the nominated executor is propounding the father’s will in Westchester and retained different counsel to represent the estate in the contested probate proceeding. It appears from the time sheets that the hourly billing rates increased on February 25, 2019. The caretaker’s attorney seeks $31,703.44 for services rendered on behalf of the ward’s deceased father from June 20, 2018 and continuing after his death to May 27, 2019, representing 86.3 hours billed by three firm attorneys at hourly rates ranging from $325.00 to $400.00 for attorneys and $125.00 for paralegals. He also seeks $206.94 for disbursements consisting of parking, postage and $45.00 charged by another court for filing a will for safekeeping. In support, he submits a retainer agreement solely signed by the ward’s deceased father and notes that the firm did not bill for 12 additional hours of travel time, received no payment and all of the billed services and disbursements remain unpaid. It is uncontroverted that the caretaker did not sign a retainer agreement with this firm. The guardian ad litem strenuously objects to the caretaker’s counsel’s entire fee request, as that firm was not retained by the caretaker and provided no services that benefitted the ward. The ward’s father was its only client and its retainer agreement with the father terminated upon his death. Moreover, the caretaker is not the executor of the father’s estate and was not authorized to continue the firm’s representation on the father’s behalf. The guardian ad litem continues that none of the time billed by the firm prior to the father’s death, 8.3 hours for which $2,985.50 is sought, is germane to the guardianship proceeding and, without a retainer agreement executed by the caretaker, the firm can only recover in quantum meruit in this proceeding for fair and reasonable services benefitting the ward. He notes that the caretaker should have terminated her application upon the filing of the cross petition by the sister, who was not only the ward’s closest family member but already appointed as the ward’s first alternate standby guardian. In addition, the caretaker failed to seek treatment for the ward’s health issues and her petition did not disclose the names of all of the people who lived with her in the ward’s father’s home and the requisite fingerprint and Office of Childrens and Family Services background searches were not conducted for the other persons who allegedly attended to the ward, one of whom allegedly has a criminal record. The guardian ad litem also notes that although the caretaker’s attorney’s affidavit of legal services states that the hourly billing rate is respectively $400.00 and $300.00, many legal services were billed at a higher rate. In response to the guardian ad litem’s opposition, the sister’s attorney replies that his firm expended over one year of services, the matter was highly unusual and complicated and those services will ultimately inure to the ward’s benefit. He avers that it was necessary to also communicate and correspond with counsel in two other contested proceedings in Westchester County, and he had to apprise not only the sister who then resided in California, but also the other cousins of all pending matters. Although the retainer agreement specifies certain minimum time billings, court appearances, conferences and telephone calls were billed for the actual time spent. As an example of how his firm’s services benefitted the ward, counsel concludes that he persuaded the annuity issuer not to commence an interpleader action and prevented additional legal fees. The court bears the ultimate responsibility for approving legal fees that are charged to guardianship funds and has the discretion to determine what constitutes reasonable compensation (see SCPA 2110; Matter of Stortecky v. Mazzone, 85 NY2d 518 [1995]); Matter of Stellis, 216 AD2d 473 [2d Dept 1995]; Matter of Vitiole, 215 AD2d 765 [2nd Dept 1995]) (also see Matter of Pekorsky v. Estate of Cohen, 259 AD2d 702 [2nd Dept 1999]; Matter of Cook, 41 AD2d 907 [1st Dept 1973], affd 33 NY2d 919 [1973]; Matter of Verplanck, 151 AD2d 767 [2d Dept 1989]). There is no hard-and-fast rule to determine what is reasonable compensation in a particular case, and the court is not bound by counsel’s summary of the hours expended (see Matter of Vitole, 215 AD2d at 765). In determinating reasonable compensation, the court may consider a number of factors, including the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services and the amount of the fee sought, the professional standing of the counsel, the size of the estate, and the benefit to the estate from the services provided (see Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925], Matter of Coughlin, 221 AD2d 676 [3rd Dept 1995]). In awarding fees, the court not only considers the results achieved but the bitter nature of the contest which necessitated many of the services (see Matter of Tobias, 232 AD2d 341 [1st Dept. 1996]). Time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation (see Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966]; Matter of Snell, 17 AD2d 490 (3d Dept 1962]; Matter of Haber, NYLJ, Sept. 11, 2014, at 22, col 4 [Sur Ct, Bronx County 2014]). When multiple attorneys are employed by the fiduciary, overlap in legal services should be a factor when considering the aggregate fee (see Matter of Mergentine, 155 Misc 2d 502 [Sur Ct, Westchester, County 1992], affd 207 AD2d 453 [2nd Dept 1994]). Fees for duties performed by an attorney which are executorial in nature and capable of being performed by a lay person may not be recovered (see Matter of Passuello, 184 AD2d 108 [3d Dept 1992). Certain disbursements, inter alia, for telephone calls, postage, copying, overnight delivery, and travel are considered to constitute law office overhead, which is expected to be absorbed by counsel (see Matter of Aitken, 160 Misc 2d 587 [Sur Ct., NY County 1994]; Matter of Diamond, NYLJ, July 14, 1993, at 30, col 1 [Sur Ct, Westchester County 1993], affd 219 AD2d 717 [2d Dept 1995]). Services related to counsel’s fee application are not compensable (see Matter of Giannattasio, 2011 NY Misc LEXIS 989, 2011 NY Slip Op 30589 [U] [Sur Ct, Nassau County 2011]; Matter of Gallagher, NYLJ, Feb. 2, 1993 at 22, col 4 [Sur Ct, Bronx County 1993]). In fixing reasonable compensation for the sister’s attorney, the court notes that $23,015.50 was billed for services related to the contested probate and trust proceedings involving the father’s estate and inter vivos trust that remain pending in Westchester County, and $3,800.50 was billed for services for preparation of retainer agreements, obtaining and filing court forms and conversations with court personnel concerning same and scheduling conferences and court appearances, and the same is disallowed. Although the firm’s retainer agreement was dated December 18, 2018, its hourly billing rate increased as of February 25, 2019, resulting in $187.00 additional fees arising from rate increases. The disbursements sought include, inter alia, $178.00 for overnight mail delivery and parking, $75.00 to “set up telephone conferences”, all of which constitute office overhead, and $90.00 in witness fees relating to the contested probate proceeding pending in Westchester, all of which are also disallowed. Lacking a retainer agreement with the caretaker, her attorney’s quantuum meruit efforts for which compensation is sought appear to be principally directed on behalf of the decedent’s father prior to his death and the contested probate and trust proceedings thereafter, and were for the benefit of the caretaker and not the ward. Most of these charges relating to the guardianship proceeding were incurred after the sister, who is the respondent’s closest relative and appointed alternate standby guardian, filed her cross petition at which time the caretaker should have withdrawn her application. All of the disbursements claimed are for items normally considered office overhead (parking and postage) or a filing fee of the decedent’s will for safekeeping in the contested proceedings in a different court. On this state of the record, the court determines the fee applications filed by the sister, caretaker and guardian ad litem as follows: (1) The sum of $ 57,345.56 is awarded to the sister’s attorney for legal services and $ 319.00 in disbursements. (2) All of the caretaker’s attorney’s services and disbursements are disallowed; and (3) The sum of $ 18,600.00 is awarded to the guardian ad litem herein and disbursements are disallowed. The disallowance of services billed in this proceeding which specifically relate to the contested probate and trust proceedings pending in Westchester County is without prejudice to renewing such fee applications in an appropriate forum. Order amending decree signed.
