Surrogate Anderson ESTATE OF CARL LEVINE, Deceased (04-4620/B) — The executor of the estate of Carl Levine petitions the court pursuant to SCPA 2110 to assess the estate’s legal fees against a beneficiary of the estate. The respondent beneficiary moves to compel discovery. The relevant background is as follows. After decedent’s will was admitted to probate, numerous disputes arose over the administration of the estate and the executor’s accounting. Litigation was extensive and acrimonious. Eventually, a special referee was appointed, and under her auspices the parties agreed to settle all pending matters. Respondent’s subsequent attempt to disavow the settlement was rejected by this court (Matter of Levine, 2009 NY Misc LEXIS 6684 [Decision, Oct. 19, 2009]; 2009 NYLJ LEXIS 2566 [Decision, Nov. 5, 2009], and respondent appealed. The Appellate Division determined that respondent’s appeal was “entirely frivolous” and remanded the matter for the imposition of sanctions against respondent in the form of reasonable attorneys fees incurred by the other parties to the appeal. Upon remand, the parties settled on the amount of fees to be paid by respondent (Matter of Levine, NYLJ, May 17, 2013 at 22, col. 4; 2013 NYLJ LEXIS 484). In this proceeding, the executor seeks to hold respondent responsible for the totality of legal fees and costs incurred by the executor since February 26, 2009 (the effective date of the settlement), excluding only fees relating to the appeal, an IRS audit, and a claim against New York State for a refund. Petitioner asserts that the estate is entitled to such relief under the terms of the settlement agreement, which provides that, in the event of disputes between the parties, the prevailing party shall be entitled to recover attorneys fees from the non-prevailing party. He further asserts entitlement to an award of legal fees on the theory of “law of the case” and as a matter of equity (Matter of Hyde, 28 NY2 597 [1971]). Early in this proceeding, respondent, a lawyer then appearing pro se, sought documents and depositions which petitioner characterized as wholly unwarranted and a continuation of a respondent’s obstructive and harassing pattern of conduct. Petitioner moved for a protective order. While the motion was pending, respondent engaged counsel, and the parties thereafter agreed that respondent would withdraw his discovery demands and petitioner would withdraw the motion. Thereafter, respondent, through his counsel, sought new discovery. Those discovery demands are the subject of the present motion by respondent. Respondent seeks 1) production of any retainer letters, agreements to a cap on legal fees, and agreements between the executor and the law firms seeking fees in this proceeding not to seek reimbursement; 2) production of any documents relating to litigation and disputes in other forums for which petitioner seeks legal fees from respondent, or, the identification of documents previously produced to respondent; and 3) a limited deposition of petitioner regarding his fee arrangements with counsel to the extent that documents to be provided (or whose existence is denied) leave further questions. With respect to the retainer agreements and/or fee-fixing agreements between petitioner and the three law firms that represented him during estate administration and related litigation, petitioner initially responded that he had no such retainer agreements. He did not respond as to whether any were in his custody or control (for example, whether his various attorneys might have them). His lawyers have stated off the record that no such retainer agreements exist, although invoices which they have produced make reference to review of such agreements. But neither the petitioner nor anyone else with personal knowledge of the facts has provided a sworn response to the discovery demands stating whether such agreements currently exist or existed at some time in the past. This issue is undeniably relevant to this SCPA 2110 proceeding. Although a retainer agreement is not a prerequisite to an award of legal fees (see, e.g., Frechtman v. Gutterman, 140 AD3 538 [1st Dept 2016]), an attorney’s entitlement to fees may be limited by such an agreement (Matter of Benaware, 86 AD3 6’87 [3d Dept 2011], appeal after remand, 121 AD3 1331 [3d Dept 2014]). Respondent is entitled to a clear, sworn statement as to the existence or non-existence, past or present, of agreements between petitioner and his counsel with respect to legal fees (Mercado v. St. Andrews Hous. Dev. Fund Co., 289 AD2 148 [1st Dept 2001]; Fugazy v. Time, Inc., 24 AD2 443 [1st Dept 1965]). References to retainer letters in the invoices of petitioner’s attorneys makes particularly acute the need for “a detailed statement, made under oath, by [a person] with direct knowledge of the facts as to the past and present status of the sought documents” (Longo v. Armor Elevator Co., 279 AD2 127, 129 [1st Dept 2000]). Accordingly, petitioner is directed to respond in full to item 1 of respondent’s May 22, 2014, demand for documents and to items 1 through 4 of his August 25, 2015, demand. Respondent also seeks documents concerning legal fees incurred by the executor during disputes and litigation in forum; other than this court as identified in the petition and in invoices. Since petitioner is seeking to hold respondent responsible for the estate’s legal fees with regard to other matters, the relevance of such documents, which would reveal the work performed on behalf of the estate, is apparent. Accordingly, petitioner is directed to respond in full to item 2 of respondent’s May 22, 2014, demand for documents and to items 5, 6 and 7 of his August 25, 2015, demand for documents. To the extent that such documents have previously been produced to respondent, they need only be identified, rather than produced again. Finally, respondent seeks to depose petitioner “with respect to evidence material and necessary to respondent’s defense of this action.” Petitioner asserts that the only purpose of a deposition would be to harass him, and that, regardless, no deposition is necessary because the petition raises only questions of law. It is clearly apparent, however, that the existence or non-existence of retainer agreements and the terms of petitioner’s fee arrangements with his various lawyers are relevant matters of fact of which petitioner himself would be uniquely aware. Thus, a limited deposition on this issue is appropriate. This decision constitutes the order of the court. Dated: September 26, 2019
