DECISION In this probate proceeding the court appointed Vlad Portnoy, Esq., as guardian ad litem (hereinafter “GAL”) to protect the interests of Jonathan Wolf, a distributee whose whereabouts are unknown. GAL filed his 6-page report and recommendation on September 14, 2023, recommending that decedent’s will dated June 11, 2018 be admitted to probate. GAL filed his affirmation of services rendered and hourly breakdown on September 25, 2023, which stated he and members of his staff devoted over 17 hours to services as GAL and requested to be paid $7,615.50 in legal fees plus $15.20 in reimbursement for postage. On September 29, 2023, Alexander Wolf, the nominated executor and petitioner in this probate proceeding (hereinafter, “petitioner”), filed an affirmation objecting to GAL’s legal fees. In his affirmation, petitioner argued that GAL was inexperienced and billed for many hours which did not reflect the actual time required to complete the task. He noted that much of his communications with GAL’s office were with two of GAL’s associates: Trace Strickland and Felicia Castaldo. Petitioner complained that it took over seven months for GAL to submit his report, that the invoices charge over four hours for a one-hour conference, that there was a time entry for a meeting between Ms. Strickland and petitioner which never occurred, and that GAL’s office had failed to respond to petitioner’s communications while the file remained largely dormant for five months. On October 3, 2023, GAL filed a reply affirmation to petitioner’s affirmation objecting to GAL’s fees. In his affirmation, GAL stated that Ms. Strickland had handled the primary bulk of the work in this case before her departure. Ms. Castaldo reviewed the file and ascertained details from Ms. Strickland’s notes in continuing to work on this case. His affirmation stated, “I fully understand that the internal happenings at our firm do not justify additional expense to Decedent’s Estate and merely attempt to give context to the legal work that was done in this matter.” He also contended that this case was no routine matter. A determination of reasonable compensation to be awarded to a GAL is within the sound discretion of the court (Matter of Gerrasi, 91 AD3d 1085 [3d Dept 2012]; Matter of Twombly, NYLJ, Oct. 28, 2022 at 14, col 2 [Sur Ct, NY County 2022]). “The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services” (Matter of Ehlers, 2012 NY Slip Op 32985(U) [Sur Ct, Nassau County 2012]). The appointment of a GAL is personal and, as such, the GAL should assume all responsibility for the matter and is expected to perform all of the substantive legal services on the case (Matter of Chiang, NYLJ, May 20, 2016 at 29, col 3 [Sur Ct, NY County 2016] [only allowing a portion of work by associates of GAL when records showed that their work was supervised by GAL]; see Matter of Twombly, NYLJ, Oct. 28, 2022 at 14, col 2 [Sur Ct, NY County 2022] [reducing charges for time entries performed by GAL's associate]; Matter of Kaborycha, NYLJ, Dec. 31, 2001 at 17, col 1 [Sur Ct, Nassau County 2001]["[T]he guardian ad litem should assume of all of the responsibility for the matter and is expected to perform all of the substantive legal services on the case. That duty cannot be delegated to someone else.”]. In determining reasonable compensation for legal services rendered by the GAL, the court may consider a number of factors. These include, but are not limited to (i) the time spent (see Matter of Kelly, 187 AD2d 718 [2d Dept 1992]); (ii) the complexity of the questions involved (see Matter of Coughlin, 221 AD2d 676 [3d Dept 1995]) and the nature of the services provided (see Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]); (iii) the amount of litigation required (see Matter of Sabatino, 66 AD2d 937 [3d Dept 1978]); (iv) the amounts involved and the benefit resulting from the performance of such services (see Matter of Shalman, 68 AD2d 940 [3d Dept 1979]); (v) the lawyer’s experience and reputation (see Matter of Brehm, 37 AD2d 95 [4th Dept 1971]); and (vi) the customary fee charged by the Bar for similar services (see Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], aff’d 213 AD 59 [4th Dept 1925], aff’d 241 NY 593 [1925]; Matter of Freeman, 34 NY2d 1 [1974]). Here, GAL reports that he and members of his staff spent over 17 hours working on this appointment, including writing his 6-page report, with rates ranging from $280 to $600 per hour. While the hourly breakdown submitted does not state which attorney performed which time entry and no affirmations by GAL’s associates were submitted, there is no question that GAL’s associates performed the bulk of the work in this assignment. The court personally appointed GAL to protect his ward’s interests, not his associates. Moreover, Ms. Strickland and Ms. Castaldo are not eligible to serve as guardians ad litem in New York County. The court will only award compensation for substantive legal services rendered by the GAL. Dated: July 17, 2024
