Papers considered: 1. Notice of Motion by Ari I. Bauer, Esq. for proponent Barbara Thorn filed May 13, 2022 2. Affidavit in Support of Motion by Barbara Thorn filed May 13, 2022 3. Attorney Affirmation in Support of Motion by Ari I. Bauer, Esq. filed May 13, 2022 4. Notice of Cross-Motion by William J. Larkin, III, Esq. for objectants Thomas J. Barry, Daniel Barry and Edmund D. Barry, III filed June 1, 2022 5. Affirmation in Support of Cross-Motion by William J. Larkin, III, Esq. with Exhibits filed June 1, 2022 6. Attorney Affirmation in Opposition to Cross-Motion by Ari. I Bauer, Esq. with Exhibits filed June 10, 2022 7. Reply Affirmation to Opposition to Cross Motion by William J Larkin III, Esq. with Exhibits filed June 17, 2022. 8. Affidavit by Thomas Barry filed June 17, 2022. AMENDED DECISION/ORDER This is a decision on a motion under CPLR 6314 to modify a preliminary injunction dated June 14, 2019 restraining and enjoining the proponent from accessing or expending the proceeds of four (4) certificates of deposit owned by the decedent (the “CDs”) and having an aggregate face value of $214,351.15. The proponent seeks an amendment of the preliminary injunction which would permit the release of a portion of the CDs proceeds to reimburse her for legal fees incurred and to be incurred in defense of the decedent’s will, and for other expenses of administration. The objectants’ cross-motion seeks the dismissal of proponent’s motion; leave to amend the objections to include a claim of fraud; invalidation of the power of attorney and beneficiary designation under the CDs; an order directing the proponent to return $229,736.01 withdrawn in 2017; and an award of $10,000 in legal fees incurred by the objectants in connection with the motion and cross-motion herein. Preliminary Injunction. Preliminary injunctive relief is a “drastic remedy which is not routinely granted” (Marietta Corp. v. Fairhurst, 301 AD2d 734, 736 [3d Dept 2003]). Its purpose is to maintain the status quo and prevent the further perpetration of an alleged wrong that would render a judgment ineffectual (Ying Fung May v. Hohi Umeki, 10 AD3d 604 [2d Dept 2004]). In granting the preliminary injunction, the Court relied in part on proponent’s statements that she intended to use the proceeds of the CDs to support herself and her two adult sons. No testimony was offered then — or now — to establish that alternate means of support, such as employment, were available to her. The Court therefore found that the prospect of proponent’s use of the CDs to support herself and her family created a credible risk of irreparable harm to the objectants absent injunctive relief. Proponent’s current application again cites her “limited means.” Notwithstanding her precarious financial situation, proponent was able to advance $100,000 for expenses of administration for which she now seeks reimbursement: $41,214.20 in attorney fees and deposition transcripts; $48,645.89 in real estate taxes, $8,700 in homeowner’s insurance for decedent’s home on Stonykill Road in Accord, which was specifically devised to proponent and in which she has resided since her father’s death, and $4,500 for repairs to its electrical service $3,883.00 for decedent’s funeral expenses In addition, proponent seeks $50,000 to retain the services of trial counsel. A motion to vacate or modify pursuant to CPLR 6314 may be granted upon “compelling or changed circumstances that render continuation of the injunction inequitable” (Matter of Spiro, 2021 NY Misc LEXIS 5949 *24 [Sur Ct Albany Cty],], quoting Thompson v. 76 Corp., 54 AD3d 844, 846 [2d Dept 2008]; see, also, Dutchess Sanitation, Inc. v. Plattekill, 51 NY2d 670, 674 [1980]). Proponent cites the untimely death of her attorney, Peter J. Matera, Esq., as the change in circumstances which necessitated the engagement of new counsel, who represent her in this proceeding. Proponent’s new counsel have advised her that they require a $50,000 retainer to represent her in the jury trial scheduled for August 26, 2022. Proponent having reported that she lacks the means to pay her new attorneys’ retainer, the Court finds that these are circumstances which render a continuation of the permanent injunction in its present form inequitable. Expenses of Administration. An executor seeking reimbursement for attorneys’ fees or other expenses of administration bears the burden of demonstrating that the expense was justly incurred, necessary and that the amount charged does not exceed the value of services or goods (Matter of Van Renssalaer, 2009 NY Misc LEXIS 3801 **3 [Sur Ct Nassau Cty]). Funeral expenses is preferred to all other debts and claims and are to be paid from the first moneys received by the fiduciary (SCPA 1811[1]). The Court finds that the charges associated with decedent’s funeral were necessary and justly incurred. Proponent is entitled to reimbursement for this expense, provided that she substantiates the amount charged in the manner described below. As to the legal fees sought by proponent, the Court’s decision begins with the well-settled principal that a fiduciary is entitled to engage counsel in the administration of an estate, and to be reimbursed the costs of such services as reasonable expenses of administration (Barnum v. Cohen, 228 AD2d 957, 960 [3d Dept 1996]), provided that the fees are reasonable and that the services rendered benefit the estate (Matter of Rodken, 2 AD3d 1008, 1009 [3d Dept 2003]). Legal fees incurred in defense of the propounded will are appropriately charged to the estate when the will is offered in good faith (SCPA 2302[3](a)[2]); see, Estate of Elkan, 2008 NY Misc LEXIS 6083 *4 [Sur Ct Bx Cty] (reasonable legal fees to be charged to the estate unless the instrument is denied probate based on proponent’s wrongful acts, such as fraud or undue influence). Notwithstanding objectants’ insistence that proponent misused the power of attorney granted to her by decedent to add her name as the designated beneficiary of the CDs, there is no evidence that the power of attorney was used for this purpose or that the propounded will was offered in bad faith. Keeping in mind that the policy underlying SCPA 2302[3](a)[2] is “to encourage good-faith efforts to give expression to the presumed interest of the decedent,” the Court finds no basis in the evidence to deny proponent the reimbursement for legal fees she has incurred in that role (Estate of Smithers, 195 Misc2d 510, 515 [Sur Ct Nassau Cty 2003]). Legal fees incurred to defend proponent against the objectants’ motion for preliminary injunction are also properly charged to the estate because the beneficiary designation was part of decedent’s testamentary plan (Matter of Thomas, 74 Misc3d 891, 901 [Sur Ct Monroe Cty 2022] (actions to enforce a beneficiary designation for CDs benefitted the estate “in that those actions effectuated the will of the testator”). The Court will authorize the release of funds to reimburse proponent for reasonable attorneys’ fees and disbursements incurred in connection with this proceeding upon submission of documentation evidencing the amount of such fees and the services rendered, as further described below. Carrying Charges for Stonykill Road Property. Proponent’s application for reimbursement of real estate taxes, homeowner’s insurance and repairs to the Stonykill Road property are denied. As the specific legatee of the property, title vested in proponent on her father’s death, subject to the probate of his will and payment of expenses of administration (Matter of Jewett, 145 AD3d 1114, 1117 [3d Dept 2016]; SCPA 1902). Her personal responsibility for maintenance expenses and other carrying charges coincided with the vesting of her interest in the property (Matter of Jewett at 1117). The Court notes that even if proponent were not the title-holder of the property, her exclusive use occupancy of the property for six (6) years cannot be at the expense of the estate. The reasonable value of proponent’s use and occupancy of the 3-bedroom 19th century home undoubtedly exceeds the $1,400 per month she incurred in paying its carrying charges for 6 years. Proponent’s application for payment of $50,000 retainer for legal services yet to be rendered is also denied. The court lacks legal authority to award legal fees to pay for future services (Matter of Rubin, 172 AD2d 841 [2d Dept 1991]; see, Estate of Cirnigliaro, 2018 NYU LEXIS 1731, *3 [Sur Ct NY Cty](SCPA 2110 expressly provides for judicial review of services rendered, not for services yet to be rendered). Proponent’s motion to amend the preliminary injunction for payment of future legal services is therefore denied. Documents evidencing all payments for which reimbursement from the CDs proceeds is hereby authorized and shall be submitted to the Court by efiling. Proponent’s request for in camera review of these and other evidence of expenses for which reimbursement is sought is denied. Documentation for attorneys’ fees shall conform to the requirements of Uniform Rule 207.45(a) to the extent that they can be produced from the files of Mr. Matera. In the absence of prejudice or surprise, leave to amend a pleading under CPLR 3025 (b) shall be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” (Petry v. Gillon, 199 AD3d 1277, 1280 [3d Dept 2021]; quoting NYAHSA Servs., Inc., Self-Ins. Trust v. People Care Inc., 156 AD3d 99, 102 [3d Dept 2017]). Objectants seek to amend their objections to include an allegation of fraud based on the misuse of decedent’s power of attorney appointing proponent. There is no evidence in the record to support this contention. The bank documents designating proponent as the ultimate beneficiary of the CDs bear only the decedent’s signature. There is no reference to the power of attorney or its exercise by objectant in the documents proffered. The objectant’s motion to offer an amendment to the objections is denied. The balance of the relief sought in the objectant’ cross-motion has been considered and is hereby denied. Proponent’s motion to amend the terms of the preliminary injunction is granted. It is, therefore, ORDERED AND DECREED that, upon the Court’s receipt of documents substantiating the expenses for which proponent requests reimbursement, the Court will issue an order amending the terms of the preliminary injunction to permit the release of funds reimbursing proponent. This constitutes the decision of the Court. All papers, including this Decision, are hereby entered and filed with the Clerk of the Surrogate’s Court. Counsel is not relieved from the applicable provisions of CPLR Section 2220 relating to service and notice of entry. Dated: July 12, 2022
