In this proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act, the respondent’s brother, who was appointed standby guardian of the respondent’s person and property pursuant to decree dated November 17, 2016, which determined the respondent to be intellectually disabled, now petitions seeking his elevation as successor guardian of the respondent’s property but requests to remain standby guardian of the respondent’s person. He also nominates the respondent’s sister-in-law as standby guardian of property only. The current guardian of the respondent’s person and property, the respondent’s mother, consents to the application, executed a resignation of her property appointment only and requests that she remain primary guardian of the respondent’s person. Counsel for the petitioner and the guardian ad litem also request approval of their fees and disbursements. Causes of action for the respondent’s birth injuries were previously settled by an infant compromise order in the Supreme Court, Bronx County (McGee, J.) that, inter alia, directed the payment of up-front proceeds and funding of an annuity that was to pay substantial staggered distributions and lifetime benefits. However, the mother never reported the annuity payments and distributions as guardianship assets to this court. The omission only came to the court’s attention after the mother filed a petition seeking to establish a supplemental needs trust for the respondent’s benefit into which the other reported guardianship funds were to be placed. The court then appointed a guardian ad litem who conducted extensive investigation and restrained all of the guardianship accounts and the annuity payments and filed a proceeding seeking to suspend the mother’s letters of property guardianship and served demands for document production from the mother concerning all of the guardianship funds collected by her, including the annuity payments, as well as all of the expenses paid for the ward’s benefit. She was unable to do so. The respondent’s brother then provided certain documentation concerning the annuity payments and disbursements paid during the course of the guardianship and represented that, should he be appointed successor property guardian, that he would expeditiously state an account on the mother’s behalf. It is uncontroverted that the respondent has significant medical issues, requires specialized round the clock custodial care, and that the mother, who is devoted to his well being and appropriately addresses his physical needs, cannot fulfill her guardianship record keeping responsibilities. On this state of the record, including the testimony of the petitioner and the recommendation of the guardian ad litem, and that it appears to be in the best interests of the respondent, the court is satisfied that the mother and the petitioner remain qualified to serve as guardian and standby guardian of his person, and that the petitioner and the nominated successor standby property guardian are each qualified to assume the responsibility of serving as the respondent’s property guardians, the application is granted. Accordingly, the respondent’s brother, Clarence B., is appointed successor primary guardian of his property and is to remain standby guardian of his person to serve when the primary guardian of the person is unable to do so. The respondent’s sister-in-law, Tajah D. B, is appointed successor standby property guardian of the respondent, to serve when the successor property guardian is unable to do so. The letters of property guardianship awarded to the respondent’s mother, Lydia C. B., and the appointment of Clarence B., the brother, as standby property guardian are to be revoked in the order to be entered hereon. The successor property guardian is directed to state an account on the former property guardian’s behalf within 60 days of the date of the order amending the November 17, 2016 decree to be entered hereon, in which the restraints placed by the guardian ad litem upon the depository banks and the annuity payments are to be lifted upon being appropriately retitled in the joint names of the successor property guardian and the Guardianship Clerk of this court, subject to further order of the court. The petitioner’s attorney, who formerly represented the mother, notes that the legal services encompassed, inter alia, obtaining voluminous financial records from the mother, efforts to substantiate that the disbursements by the mother were expended for the benefit of the respondent, filing the initial SNT proceeding, interfacing with social services agencies and the guardian ad litem, defending the suspension application, obtaining the mother’s agreement to resign as property guardian, and preparing the documents in support of the instant application. He adds that the mother and the son paid a $3,000 retainer fee which was previously refunded to them from the restrained guardianship funds pursuant to an emergency withdrawal order. In further support, he submits invoices with time and charges annexed demonstrating that counsel expended 27.1 hours of legal services billed at a $400 hourly rate, 3.5 hours billed at a $350 rate, and his associate expended 10.9. hours billed at a $275 hourly rate. The total legal fee sought is $15,062.50 less the $3,000 paid on account. In addition, he seeks reimbursement for $416.66 in out-of-pocket expenses. The guardian ad litem has filed multiple reports with time sheets. At the request of the court, he submitted a detailed sixth amended affirmation of the comprehensive services rendered throughout these proceedings. He notes that he has not been compensated for such services since his appointment on April 11, 2018 for 50.2 hours of services expended to date and that his customary hourly billing rate is $400. The guardian ad litem avers that this matter has been more complex than usual guardianship matters, as it required detailed analysis of voluminous financial records, statements and accountant’s reports, correspondence with several banks and the annuity company, consultations with the ward, mother and the petitioner, and multiple virtual teleconferences with the Court’s Law Department and the court, and preparation of numerous reports. He also seeks to be reimbursed $97.03 in expenses. 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 guardianship 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]). 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]). 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]). As the guardian ad litem notes, this guardianship presented complex issues. Substantial annuity payments, guardianship disbursements and bank records spanning the course of many years were unaccounted for. At the outset counsel for the petitioner and the guardian ad litem had adversarial positions and the guardian ad litem sought revocation of the mother’s property letters. The petitioner retrieved many records from the mother and presented them to counsel and the guardian ad litem with summaries from his accountant. Each time documentation was presented, the guardian ad litem analyzed the voluminous documentation provided and requested additional submissions. The services rendered by counsel and the guardian ad litem were complex, efficient and benefitted the ward. In fixing reasonable compensation for the petitioner’s attorney, the court notes a $1,225 charge for 3.5 hours legal services for travel to and from the court and $98.16 in expenditures for photocopies, postage and overnight delivery, which normally constitute office overhead, and are disallowed, as is the request by the guardian ad litem for $70.29 for overnight delivery of documents to the court. The charge of $26.74 for overnight delivery of a letter to the annuity company restraining the annuity payments is authorized. On this state of the record, the court determines the fee applications filed by counsel for the petitioner and the guardian ad litem as follows: (1) The sum of $13,837.50 is awarded to the petitioner’s attorney for legal services, less deduction of $3,000 for a retainer payment and $318.50 in disbursements; and (2) the sum of $20,080.00 is awarded to the guardian ad litem herein and $26.74 in disbursements. Order amending decree signed. Dated: May 17, 2022
