In this SCPA 2110 proceeding brought by Oshrie Zak, former counsel for six distributees, children of the decedent, to fix his, and predecessor counsel, Sanford Glatzer’s, fees in this estate, two children appeared by counsel and entered into a stipulation which allowed for the serving and filing of objections by a date certain. Upon the failure of the respondents to appear or file objections as stipulated, the court rendered a decision setting the matter for inquest insofar as the petitioning attorney requested a hearing (Matter of Murray, NYLJ, May 28, 2019, at 28, col 4 [Sur Ct, Bronx County 2019]). Subsequent to the court’s decision, Mr. Zak submitted additional proofs of the legal services rendered, which includes the services rendered by the predecessor attorney, who has a charging lien in this estate and also seeks to be compensated. Along with the additional submissions, both counsel waive a hearing in this proceeding and request a determination on the filed papers. The decedent died intestate on June 21, 1987. His distributees are a post-deceased spouse and six children, who are not the issue of the spouse. After he divorced his first wife, but prior to his marriage to the post-deceased spouse, by deed dated November 25, 1974 the decedent conveyed a two family home located at 3046 Bruner Avenue in the Bronx to himself and a cousin as tenants in common. Thereafter, one day after the decedent’s death, the cousin transferred that interest to the surviving spouse for $10 consideration. The decedent’s children retained Mr. Glatzer seeking to set aside the transfer to the surviving spouse of one-half of the realty by the decedent’s cousin on various grounds including fraud or constructive trust. The spouse filed her petition for letters of administration on August 23, 2006 and letters issued to her on December 7, 2006. Although the parties never disputed that one-half of the realty is an estate asset, extensive litigation ensued respecting the other half. The issues were finally resolved when the realty was sold and the net sale proceeds for the remaining half have been held by the title company. Mr. Zak submits his affirmation of service together with retainers signed by the six distributees wherein they agree to the one-third contingency fee. Additionally, Mr. Zak submits time records revealing a total of 67.1 hours for services rendered from October 17, 2014 up through and including September 1, 2018. Mr. Zak seeks compensation based upon his contingency retainer fee of 33 1/3 percent on the amount on hand, or $100,000. Separately, Mr. Glatzer submits an affirmation of services wherein he indicates he initially met the decedent’s son on April 24, 2006 and was retained on May 3, 2006 to represent the interests of the son and his siblings. The representation continued through November 7, 2014 at which time he was discharged and replaced by Mr. Zak. Mr. Glatzer indicates that as a result of a move in 2011, he could not locate his contemporaneous time records, however, in the over eight years of his representation he indicates that a review of the court file reveals there was extensive motion practice, discovery requests, a motion for summary judgment, which he was able to defeat, an open commission and numerous conferences. He estimates that over this period he expended at least 140 hours warranting a $70,000 fee. “In a proceeding pursuant to SCPA 2110 to fix and determine an attorney’s fee, the Surrogate bears the ultimate responsibility of deciding what constitutes a reasonable legal fee, regardless of the existence of a retainer agreement or whether all of the interested parties have consented to the amount of fees requested (See Matter of Talbot, 84 AD3d 967 [2nd Dept 2011] [citations omitted]). Contingency agreements in surrogate court proceedings are not per se improper, however, the Surrogate always has the authority to determine the reasonableness of the fee in such event (Matter of Talbot, 84 AD3d at 968 [2nd Dept 2011]). In determining the reasonableness of the fees, the court will consider certain factors which include the agreement of the parties; the size of the estate; the difficulty of the questions involved; the skill required to handle the problems presented; the attorney’s experience, ability and reputation; the responsibilities involved and the benefit resulting to the estate from the services rendered (see, Matter of Freeman, 34 NY2d 1[1974]; Matter of Potts, 213 App Div 59,62 [4th Dept 1925], aff’d, 241 NY 510 [1925]). With regard to the instant application it is readily apparent that an award of attorney fees based upon the contingent agreement is not excessive given the close to 14 years of representation by both counsel. Accordingly, this decision constitutes the order of court awarding $100,000 to be shared equally by Messrs. Glatzer and Zak. Upon service of a copy of this order, Judicial Title Company is directed to pay $50,000 to Mr. Glatzer and $50,000 to Mr. Zak, and release the balance of the monies being held in escrow to those individuals entitled to that portion of the escrow. The Chief Clerk shall mail a copy of this decision and order to Messrs. Glatzer and Zak, as well as counsel for the two children that have appeared. Proceed accordingly.
