Surrogate Anderson ESTATE OF EDWARD FORDHAM, Deceased (14-2831/A) — This is a proceeding by the former attorney for the co-executors of the estate of Edward Fordham asking the court to fix his compensation in the amount of $35,112.57 (SCPA §2110). Although the executors were given additional time to file a responsive pleading (see Matter of Fordham, NYLJ, Feb. 16, 2018, at 23, col 1 [Sur Ct, New York County 2018]), they failed to do so. As a result, all of the allegations in the petition are deemed true (SCPA §509). Petitioner was retained by the respondent executors shortly after decedent’s death in June 2014. He represented respondents for almost three years until they discharged him by letter dated March 22, 2017. The letter, signed by both respondents, does not assert that petitioner was discharged for cause. Indeed, in the letter, respondents thanked petitioner “for his services” and requested the final bill, which petitioner forwarded on April 27, 2017. The bill showed a balance due of $35,112.17, which reflected $40,429.59 for legal services rendered, plus $2,332.58 in itemized disbursements, less a credit for $7,650 previously paid. However, respondents neither paid the bill nor objected to it. Several months later, petitioner sent respondents a letter demanding payment and informing them that if payment was not forthcoming, he would file a claim in Surrogate’s Court. After respondents failed to pay the bill or otherwise respond, petitioner commenced this proceeding, to which respondents have also failed to respond. The record establishes that petitioner’s representation of respondents in connection with the administration of the estate required significant legal services. For example, in addition to the legal services performed in the probate proceeding, petitioner was also called upon 1) to resolve issues with the IRS arising from decedent’s failure to pay taxes, and 2) to represent the estate in eight unrelated litigations. Had petitioner sought compensation at his usual hourly rate for the more than 200 hours of services he performed in representing the executors in estate matters, his fees would have far exceeded $40,429.59. Instead, petitioner elected to seek payment in accordance with the retainer agreement, which provided for a fee based upon a percentage of the gross estate. He sought this lesser amount even though his discharge abrogated the agreement, thus entitling him to seek the full value of his services based on quantum meruit (see e.g Matter of Leopold, 244 AD2d 411 [2d Dept 1997]). Based upon the foregoing, as well as the factors set forth in Matter of Freeman (34 NY2d 1 [1974]) and Matter of Potts (213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]), the court, in its discretion, determines that petitioner has substantiated the value of his legal services and disbursements in the amount of $42,762.17. Accordingly, the court grants the petition and fixes petitioner’s compensation in the requested amount, $35,112.17, which reflects petitioners’ payments of $7,650. Respondents are directed to pay the fee in the amount fixed from estate’s assets. This decision constitutes the order of the court. Dated: November 12, 2019
ESTATE OF DOLORES DUFFY, Deceased (12-4145 A) — The compromise of causes of action for decedent’s wrongful death and conscious pain and suffering was approved, and the attorney’s fees and disbursements were fixed and determined, by order of the Supreme Court, New York County. The restrictions contained in the letters issued to the administrator are removed, and he is authorized to collect the settlement and execute the necessary receipts and releases. The settlement proceeds are allocated entirely to the cause of action for conscious pain and suffering. The administrator has waived his right to receive commissions. Funeral expenses were paid by petitioner, and no reimbursement is sought. The balance of the settlement proceeds shall be distributed to petitioner, as decedent’s sole distributee, in accordance with the petition. The account is settled, and the decree is signed. Dated: November 13, 2019
