843 N.Y.S.2d 732 | N.Y. App. Div. | 2007
Appeal from a decree of the Surrogate’s Court of Columbia County (Czajka, S.), entered April 24, 2006, which judicially settled the final accounting of decedent’s estate.
Every estate decision produced animosity and strife. Petitioner sought court approval for the sale of the majority of the real property to a third party, and the sale of a 3.39-acre parcel to herself—the parcel which contained the easement to her—for market value. After the parties reached a settlement on the fair market value of that parcel, Surrogate’s Court approved the real property sales. When petitioner filed her final accounting, Lobb, Rehr and Dinaburg (hereinafter collectively referred to as the objectants) filed objections. Following a five-day trial, the court denied almost all of the objections. Accordingly, the court issued a final decree of judicial settlement which awarded petitioner a commission, charged the estate for most of the claimed counsel fees, charged the value of items of personal property against each beneficiary’s share and awarded petitioner the value of two certificates of deposit (hereinafter CDs) she jointly held with decedent. Lobb appeals.
Petitioner was the owner of the CDs. Testimony of petitioner and a bank employee, as well as the signature cards and account disclosure statement, established that the CDs were joint accounts with rights of survivorship. In the absence of allegations of fraud or undue influence, this evidence created a presumption that petitioner was entitled to the balance of those accounts (see Banking Law § 675 [b]). Lobb failed to rebut that presumption with clear and convincing proof supporting an inference that the joint accounts were opened only as a matter of convenience (see Banking Law § 675 [b]; compare Matter of Johnson, 7 AD3d 959, 960 [2004], lv denied 3 NY3d 606 [2004]; Matter of Stalter, 270 AD2d 594, 595-596 [2000], lv denied 95 NY2d 760 [2000]). Based on the statute, the CDs were not estate assets because they passed to petitioner upon decedent’s death.
Petitioner did not breach her fiduciary duty. Initially, Surrogate’s Court correctly determined that all objections related
Petitioner did not violate her fiduciary duty to the estate by refusing, in her individual capacity as a property owner and neighbor, to relinquish her own property rights in favor of the estate by acknowledging or approving of a perpetual easement burdening her property when there was no deeded basis for a perpetual easement (compare Matter of Rubin, 30 AD3d 668, 669-670 [2006] [holding that executor’s actions in his capacity as CEO of a corporation in which estate held interest were not subject to a claim that he breached a fiduciary duty to estate]; Matter of Brandt, 81 AD2d 268, 276-277 [1981]). She also acted properly in requesting legal advice from the estate’s counsel regarding the validity of the easement, as the issue was raised by the objectants and the existence of an easement could affect the value of the estate’s property.
Most of the counsel fees approved by Surrogate’s Court were properly charged to the estate. Surrogate’s Court is given broad discretion in its determination of compensation for an attorney who rendered legal services to an estate, subject to modification only where there was an abuse of that discretion (see SCPA 2110; Matter of Guattery, 278 AD2d 738, 739 [2000]; Matter of Graham, 238 AD2d 682, 686-687 [1997]).
Surrogate’s Court correctly determined, and petitioner conceded, that counsel fees attributable to petitioner’s potential claim against the estate for nursing services were not estate expenses, as they would benefit only petitioner and not the estate (see Matter of Graham, 238 AD2d at 687); those fees were eliminated from the revised final accounting approved by the court. We do agree, however, with Lobb’s contention that petitioner’s payment of counsel fees to her former divorce attorney did not benefit the estate and should not have been paid out of estate assets.
Lobb’s remaining arguments have been reviewed and were found unpersuasive.
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the decree is modified, on the law, with costs to petitioner, by reversing so much thereof as approved the payment from estate assets of $678.94 to attorney Sean Lally; such amount to be paid by petitioner; and, as so modified, affirmed.
Lobb’s argument concerning 22 NYCRR 207.42 is unpreserved based upon her failure to raise it in Surrogate’s Court. In any event, denial of fees for failure to timely file a report is expressly discretionary (see 22 NYCRR 207.42 [c]).