In this proceeding, a guardian ad litem (“Petitioner”) seeks an award of compensation for services rendered on behalf of his ward in two separate accounting proceedings filed by the co-trustees of an inter vivos trust established by Edwin P. Twombly, Jr. (hereafter, the “Trust”). By order dated May 13, 2016, Petitioner was appointed guardian ad litem for Maia Twombly, a minor Trust beneficiary, in an accounting proceeding filed by Ralph E. Lerner (“Lerner”) and Thomas H. Saliba, (“Saliba”), two of three co-trustees of the Trust (File No. 2013-1111/B). On December 1, 2016, Petitioner was also appointed guardian ad litem for Maia in a second accounting proceeding subsequently filed by the third co-trustee, Alessandro Twombly (File No. 2013-1111/D). Alessandro Twombly, Maia’s father and a Trust beneficiary, filed a short “zero accounting,” claiming that he never had possession or control over Trust assets. Alessandro had also filed a removal proceeding seeking the removal of Lerner and Saliba as co-trustees (File No. 2013-1111/A) based on allegations of fraud and misconduct. Another attorney — not Petitioner — had been appointed as Maia’s guardian ad litem in the removal proceeding. The removal proceeding was consolidated with Lerner and Saliba’s accounting proceeding by order of this court dated February 18, 2016. Maia reached the age of majority on September 25, 2017. In March 2018, the parties reached a settlement, pursuant to which the removal proceeding and the two accounting proceedings were discontinued. Petitioner filed his report on May 24, 2018, in which he stated that he had made settlement proposals to the other parties, but his “proposals were rejected,” and thereafter, the other parties and their respective counsel had entered into settlement negotiations from which Petitioner was excluded (the extent to which these negotiations took place prior to Maia’s reaching majority is not ascertainable from Petitioner’s submissions). Petitioner’s report, which does not contain any recommendations, sets forth his criticisms of various actions taken by co-trustees Lerner and Saliba, including making advance payments of $3.5 million in commissions to themselves without court approval and authorizing payments of excessive legal fees and payments to entities in which Lerner or Saliba had an ownership interest. In August of 2019, Petitioner filed his affirmation of legal services and contemporaneous time records. According to these records, a total of 158.95 hours were billed by Petitioner, his colleague Diahn McGrath, and his paralegal (the time records do not show the total time spent by each of these three individuals). Petitioner bills out his own time at a rate of $650 per hour, his colleague’s time at $550 per hour,1 and his paralegal’s time at $175 per hour. He requests compensation in the total amount of $68,625.25. A determination of reasonable compensation to be awarded to a guardian ad litem is within the sound discretion of the court (Matter of Gerrasi, 91 AD3d 1085 [3d Dept 2012]; Matter of Tran, NYLJ, April 8, 2022, at 19, col 4 [Sur Ct, NY County 2022]; Matter of Rosenberg, NYLJ, Jan. 13, 2013, at 21, col 4 [Sur Ct, NY County 2013]). The Surrogate bears ultimate responsibility to decide what constitutes reasonable compensation even where, as here, no objections have been filed to the amount requested (see Matter of Harvey, NYLJ, Feb. 10, 2004, at 26, col 6 [Sur Ct, Westchester County 2004]). The relevant factors in making such a determination are the same factors relevant to the fixation of fees of an attorney retained in an estate matter (Matter of Tran, supra; Matter of Rosenberg, supra; Matter of Burke, 6 AD2d 429, 430 [1st Dept. 1958]). Thus, in addition to the amount of time spent, courts must consider the value of the property involved, the difficulties encountered and the skills required to handle them, the professional standing of the attorney, the customary fee in the community, and the benefit to the estate from the services rendered (Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 213 AD 59 [4th Dept], affd 241 NY 593 [1925]). The complexities involved in Lerner and Saliba’s accounting proceeding are readily apparent from the accounting itself. The Trust assets, consisting primarily of artwork and rare books, were valued at over $1 billion. The accounting was voluminous, over 600 pages, and Petitioner was obliged to familiarize himself with its contents. There were hundreds of payments to an assortment of entities, including several law firms, which totaled over $20 million. Various issues with respect to the conduct of the two co-trustees, such as making payments to an investment management company owned by Saliba and to a law firm in which Lerner was a partner, were already the subject of the removal proceeding previously filed by Alessandro Twombly. In short, even though no objections were filed to the accounting, and no motions were made, Petitioner was justified in spending a significant amount of time on this matter. However, there are several factors which warrant a reduction to the requested fee. First, Petitioner started billing time on January 29, 2016, more than three months prior to his appointment. This may be due to confusion caused by the fact that an order dated January 6, 2016, appointing Petitioner as a guardian in the first accounting proceeding, was subsequently vacated on January 22, 2016. At some point thereafter, Petitioner should have been aware that the original order appointing him had been vacated merely a week after it was issued. Nevertheless, Petitioner billed 2.5 hours on January 29, 2016, for the preparation and filing of his appointment papers and for two phone calls with counsel for other parties. He continued to bill time throughout February, March and April of 2016. Moreover, some time descriptions during this period are problematic. For example, his time records contain two time entries for February 5, 2016, one for 1.5 hours to “attend calendar call” and one for 2 hours to go “to court for return [date].” These entries appear to be duplicative. All told, Petitioner billed over eleven hours prior to his appointment on May 13, 2016, and his paralegal billed one hour, generating fees totaling $7,487.50. It may well be that some of the time billed by Petitioner during this period resulted in less time being charged after his appointment, and for this reason, the court will only deduct only $5,000 on account of these pre-appointment charges. Second, there are several instances where Petitioner and his paralegal spent excessive time on particular tasks. For example, Petitioner and his paralegal spent over 30 hours reviewing various filings, primarily the accounting itself. They also spent more than 20 hours “working on objections.” Given that another guardian ad litem was representing Maia’s interests in the removal proceeding, which involved many of the same allegations as those underlying the accounting proceeding, and given that the various other Trust beneficiaries, particularly Alessandro, had a shared interest in holding Lerner’s and Saliba accountable for their alleged misconduct, Petitioner could have coordinated with counsel to avoid a duplication of efforts in analyzing the accounting and in formulating objections thereto. However, there is nothing in Petitioner’s submissions to indicate that he did so. In light of this, the court believes that a modest reduction of $2,500 to Petitioner’s compensation is warranted. Third, Petitioner spent about eight hours during July and August of 2016 drafting a settlement proposal which, as noted previously, was ultimately rejected by the other parties (his paralegal also spent a few hours on the proposal). The reason for Petitioner’s assuming this task is not clear from his submissions. What is clear is that in early 2017, Alessandro’s counsel drafted another settlement agreement. Petitioner’s paralegal’s time entries indicate that on May 31, 2017, Petitioner refused to enter into this agreement on his ward’s behalf. Regardless of the merits of Petitioner’s position, it appears that the time spent by Petitioner on drafting his own settlement proposal did not benefit either his ward or the Trust, and for that reason, the court will deduct another $5,200 from its compensation calculation. Fourth, in addition to the considerable time spent by Petitioner and his paralegal to prepare objections to the accounting, Petitioner’s colleague, Diahn McGrath, spent 13.5 hours to review the accounting and “work on objections.” Ms. McGrath was not appointed by the court in any of these proceedings and the reason for her involvement was not addressed in Petitioner’s submissions. Petitioner offers no explanation as to why he himself could not complete this task, particularly given the assistance of his paralegal. Accordingly, the $7,425 in charges which Petitioner billed for Ms. McGrath’s time (13.5 hours at $550 per hour) will be deducted from the calculation of Petitioner’s compensation. Finally, it is axiomatic that the appointment of a guardian ad litem for a minor terminates when the minor reaches the age of majority (see Malik v. Malik, 15 Misc 3d 883, 888 [Sup Ct, Suffolk County 2007]; Matter of Pesantez, 2007 NY Slip Op 50963 [U] [Sur Ct, Nassau County 2007]). Nevertheless, even after his ward turned 18, Petitioner continued to work on the matter and bill 16.75 hours of his time. Eight hours of his time was spent preparing his nine-page report as guardian ad litem, and his paralegal spent an additional four hours on edits. At least a portion of the time spent on the report is justifiable, since it is proper for a guardian ad litem to file a report at the conclusion of his appointment, regardless of the status of the proceeding. But the remainder of Petitioner’s time was spent on other tasks, such as attending three court calendars, two of which were adjournments (3.5 hours), speaking with counsel for other beneficiaries (2 hours), and 3.25 hours on May 31, 2018, for various tasks described as follows: “trip to Surrogate Court, call with [Maia's guardian ad litem in the removal proceeding], work on objections, research SCPA 2310.” There does not appear to be any justification for Petitioner, an experienced attorney, to spend 8.75 hours on these tasks subsequent to the termination of his appointment, and accordingly, the court reduces his compensation by $5,687.50. In addition, according to the paralegal’s time entry dated February 22, 2018, Petitioner received an email from counsel for another Trust beneficiary informing him that the parties were close to reaching a settlement pertaining to all the pending proceedings, and thus there was no need for either of Maia’s two guardians ad litem to file reports. While, as noted above, Petitioner’s filing of a report was appropriate, the amount of time spent on it was excessive, particularly in light his having been informed that a settlement was imminent. For that reason, the court finds that a further reduction of $1, 50, reflecting two hours of Petitioner’s time and two hours of his paralegal’s time, is warranted. In light of the foregoing and, upon consideration of the usual factors in fixing compensation as discussed above, Petitioner’s award is fixed in the amount of $41,162.50. Decree signed. Dated: October 24, 2022
