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In re Application to Fix the Legal Fees of Counsel for Proponent of the Will of Wallace

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 29, 2009

IN RE APPLICATION TO FIX THE LEGAL FEES OF COUNSEL FOR PROPONENT OF THE WILL OF HOWARD C. WALLACE, DECEASED.
IN RE APPLICATION TO RELEASE FUNDS IN THE ESTATE OF HOWARD C. WALLACE, DECEASED.
HEINRICH J. ZIEGLER, RESPONDENT-APPELLANT,
v.
MCCALLION & ASSOCIATES LLP, PETITIONER-RESPONDENT,
BANK OF AMERICA, N.A., ETC., RESPONDENT-RESPONDENT.

Order, Surrogate's Court, New York County (Renee R. Roth, S.), entered on or about December 15, 2008, which, insofar as appealed from, fixed and determined the attorneys' fees of petitioner McCallion & Associates LLP (the Law Firm) in the sum of $985,000.00 and fixed disbursements to the Law Firm in the sum of $10,016.05, unanimously affirmed, with costs. Order, same court and Surrogate, entered on or about December 26, 2008, which granted the Law Firm's motion seeking payment of the sum of $995,016.05 from funds held by Bank of America, N.A. to the extent of directing said Bank to pay the Law Firm the sum of $300,000, and enjoined appellant Ziegler from collecting any amount from a certain trust that would reduce the value of that trust to less than $1.7 million, unanimously modified, on the law and the facts, that portion of the order directing payment to the Law Firm denied, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, Acosta, DeGrasse, RomÁn, JJ.

2709/06

The Surrogate's Court has broad discretion under SCPA 2110 to consider a wide range of factors in fixing attorneys' fees (Matter of Tendler, 12 AD3d 520, 521 [2004]; Matter of Gluck, 279 AD2d 575 [2001]; see Matter of Sall, 292 AD2d 195 [2002], lv denied 98 NY2d 606 [2002], appeal dismissed 98 NY2d 726 [2002]). Additionally, on appeal from an order fixing the value of legal services, an award of counsel fees will not be disturbed unless it constitutes an abuse of discretion (Matter of Patchin, 106 AD2d 730 [1984]; see also Matter of Klein, 285 AD2d 718 [2001]). The test is to ascertain whether Surrogate's Court "[took] into account all of the various factors entitled to consideration" (Matter of Greatsinger, 67 NY2d 177, 181-182 [1986]; see Matter of Piterniak, 38 AD3d 780, 781 [2007]). The relevant factors, in turn, include the amount of time involved, the degree of difficulty of the matter in which services were rendered, the amount of money involved, the extent of the attorney's experience, and the results obtained (see Matter of Freeman, 34 NY2d 1, 9 [1974]; Piterniak, 38 AD3d at 781; Gluck, 279 AD2d at 576).

Here, Surrogate's Court had before it ample information with which to make a determination regarding the attorneys' fees, as the Surrogate had presided over the case from its inception, and therefore was well aware of the difficulty of the issues involved and the services rendered (see Matter of Smith, 131 AD2d 913, 915 [1987]. Indeed, as the Surrogate noted, the Law Firm obtained a favorable result for Ziegler despite the significant difficulties that the facts presented for his case presented.

With respect to the December 26, 2008 order, "[t]he general rule is that, where legal services have been rendered for the benefit of the estate as a whole, resulting in the enlargement of all the shares of all the estate beneficiaries, reasonable compensation should be granted from the funds of the estate" (Matter of Kinzler, 195 AD2d 464, 465 [1993]). However, where the legal services rendered did not benefit the estate but benefitted only the individuals whom the attorney represented, the attorney must seek compensation from the clients individually (Matter of Baxter (Gaynor), 196 AD2d 186, 190 [1994], lv denied 84 NY2d 808 [1994]).

Here, the Law Firm did not render services to the estate, but rather, to Ziegler, and the Law Firm's actions did not benefit the estate generally. Moreover, the record contains no suggestion that the Law Firm's efforts enlarged the estate for all the legatees (see Matter of Ricca, 55 AD3d 838, 839-840 [2008]; Matter of Baxter (Gaynor), 196 AD2d at 190). As a result, the Law Firm must look to Ziegler, not to the estate, for the $300,000 awarded in the December 26, 2008 order.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091229

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