NY Slip Op 2017 00651
February 1, 2017
This is a guardianship proceeding held pursuant to Mental Hygiene Law Article 81. In this case, Dimitrios Spanos a successor guardian for Yolanda TM sought to settle his account. He is appealing from and Order of the Supreme Court entered on 12/12/13 in Queens County. This ruling awarded him commissions for his guardianship (SCPA 2307(1) in the amount of $14, 496 and attorney’s fees in the amount of $1,823.
It was ordered that the Supreme Court order be modified. The 4th paragraph should be deleted stating the amount of the guardianship commission to be $14,496 and replace it with the amount of $16,789.62. Also, the portion of the Order awarding $1,823.50 in attorney’s fees should be deleted.
Back in April of 2008, the appellant was appointed successor guardian of Yolanda TM, who is incapacitated. In 2013, the appellant moved to settle his final account, seeking guardianship commissions (SCPA 2307(1) and attorney’s fees. The appellant provided proof to the court that legal fees had amounted to $16,320.
In an order made in December 2013, the Supreme Court awarded the appellant $14,496.50 for the guardianship commissions and only $1,823 in attorney’s fees. The court returned the matter to the Supreme Court to set out its calculations ad provide reasoning for their previous decision (Matter of Yolanda TM 137 AD3d 128).
When the case was remitted, the Supreme Court set forth their calculations supporting the $14,496 figure. The total amount of compensation was initially $16,789.62 less the amount of prior compensation in the amount of $2,293.12. The appellant didn’t however, dispute the calculation. The appellant argues that there was no reason to deduct the $2,293.13 number (SCPA2307).The court disagrees with his contention that he was entitled to additional compensation. This court according modifies the amended order to include the award of $16,789.
The question of the proper amount of attorney fees must be addressed by the Supreme Court in a new hearing (Matter of Gottlieb 221 AD2d 530, 531). The court said that “classifying a service as being legal in nature doesn’t mean it’s compensable” ad that “compensation for legal services is limited to time spent on legal matters (Matter of Shydasha J.S. Smith 117 AD3d 1066, 1068, Matter of Passuello 184 AD2d 108,111.
The court said that it is improper to award attorney’s fees when the guardian is already being compensated through a commission (Matter of Shydasha J.S. Smith 117AD3d 1064. The court said here, there are things that were done by legal counsel that didn’t need to be. Some tasks could have been performed by the guardian himself, and he has already been compensated (Matter of Alice D [Lupoli] 113 AD3d 609, 614).
It was not correct of the prior court to figure attorney fees by calculating the difference between the commission and the attorney fee amount. The court therefore remits the matter to the Supreme Court for a new hearing and a new calculation regarding attorney’s fees.
As an aside, guardianship proceedings are controlled by Article 81 of the New York Mental Hygiene Law. This statute also addresses the personal needs of the child/incapacitated (MHL81.22) and property management (MHL 81.21).
In many instances the court will appoint that an evaluation of the case be conducted (New York Mental Hygiene Law 81.09). This person investigates the case and prepares a written report for the court.
This service is very expensive, particularly in the guardianship case is contested. This person is entitled to a fee for performing his job (MHL 81.09). Generally this and other expenses must be paid by the guardian as part of their ongoing responsibility.
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