Surrogate Sall ESTATE OF ADAM PATT, Deceased (15-784/A) — On it’s own motion, the court’s Decision dated February 3, 2021 is recalled and vacated, and this Amended Decision is issued in lieu thereof: This is an uncontested proceeding by petitioner Arlene Seitz to judicially settle her account as administrator of the decedent’s estate and for related relief. The court has appointed Andrew W. Buder, Esq. as guardian ad litem for the decedent’s infant daughter, who is his only distributee. He has filed his report and recommends that the court grant the relief requested in the petition as amended. On June 24, 2012, the decedent died intestate. He had no spouse, and he was survived by one daughter, an infant, as his sole distributee (see SCPA 4-1.1). By amended decree dated September 24, 2015, this court appointed the petitioner as administrator of the estate, subject to her filing a bond. On October 25, 2015, after she filed the required bond, letters of administration issued to her. Now, she brings this proceeding to judicially settle her account and for related relief. The petitioner’s request to approve reimbursement of disbursements to herself in the sum of $1,639.00, none of which has been paid, is granted. However, the court notes that the petitioner improperly included this amount in Schedule A of her Amended Account, and therefore, her Amended Account is further amended to delete these items from Schedule A. The petitioner’s request to payment of statutory commissions in the amount of $7,091.72 (see SCPA 2307 [1]), none of which has been paid, is approved in part and denied in part. The petitioner has incorrectly calculated the statutory commissions based on the size of the estate. Therefore, statutory commissions are approved in the amount of $7,026.16. The petitioner seeks approval of legal fees in the amount of $16,115.00, of which $10,579.57 has been paid, to Schupbach, Williams & Pavone, LLP (hereinafter SW&P). In support of the application to fix and allow its legal fees and disbursements, a member of SW&P has submitted an affirmation of legal services describing the legal services rendered, along with its billing invoices. Counsel also waives a hearing on the issue of legal fees (22 NYCRR § 207.45). The determination of the reasonableness of professional fees awarded in an estate matter is within the sound discretion of the Surrogate’s Court (see SCPA 2110; Matter of Graham, 238 AD2d 682). In determining the reasonableness of the fees, the court should consider all of the relevant factors, including: the size of the estate; the difficulty of the questions presented; the skills required; 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). In short, when evaluating the size of the estate and the legal services actually performed, the court must ensure that the counsel fees awarded are not excessive (see Matter of Kaufman, 26 AD2d 818, affd 23 NY2d 700). Having reviewed counsel’s affirmation of legal services and contemporaneous time records, and applying the relevant case law set forth above, the court fixes and allows the legal fees in the amount of $16,115.00, of which $10,579.57 has been paid, to SW&P for all legal services rendered through July 26, 2019. The court also approves reimbursement of disbursements in the sum of $3,045.43, of which $2,420.43 has been paid, to SW&P. Included in such disbursements are charges for Federal Express in the amount of $109.88. Historically, this court has not permitted reimbursement of such charges to counsel, as it has considered Federal Express and the like to be a component of office overhead, which is not reimbursable (see Matter of Graham, 238 AD2d 682; Matter of Diamond, NYLJ July 14, 1993, at 30, col 1, affd 219 AD2d 717). However, in today’s world, overnight mail service offers many advantages. It gives the sender the ability to track mailing and confirm delivery, while also giving attorneys the confidence to forego in-person court filing. Interestingly, the reasonable time billed by attorneys and/or paraprofessionals to file documents in the court would be compensable. Using an overnight mail service to ensure a prompt and timely filing seems more practical and certainly more cost effective to the estate. Thus, and in light of the “extraordinary discretion” given to the court in determining and fixing counsel fees and disbursements (Matter of Graham, 238 AD2d at 687), the request for reimbursement of disbursements for Federal Express in the amount of $109.88 is granted. Applying the factors set forth in Matter of Freeman (34 NY2d 1, supra) and Matter of Potts (213 AppDiv 59, affd 241 NY 593 [1968]), and having reviewed Mr. Buder’s affirmation of legal services and contemporaneous time records, the court awards Mr. Buder the sum of $1,950.00 for all legal services rendered and to be rendered through the submission of his supplemental report (see 22 NYCRR 207.13 [b]). The petitioner shall pay such fee as an expense of estate administration (SCPA 405 [1][a]). After payment of outstanding administration expenses approved herein, including the reimbursement of disbursements to herself, the petitioner shall distribute the net estate to Arlene Seitz, as guardian of the property of Zoe Seitz. Such funds shall be deposited in the infant’s joint guardianship account with the clerk of the Nassau County Surrogate’s Court or other investment guardianship account as approved by that court. Because the petitioner’s amended account only goes through April 30, 2019, the petitioner is directed to supplement her account to bring it up to date. Therein, she may seek additional legal fees for legal services rendered after July 26, 2019. In accordance with the foregoing directives, upon the execution of the decree, the amended account shall be judicially settled as provided herein, the petitioner released, and the bond discharged. The petitioner is directed to settle a decree within 30 days of the date of this decision (22 NYCRR 207.37 [a]). Dated: White Plains, NY February 16, 2021
