Reitano v. Department of Social Services

Dec 20, 2011
Versions:90 A.D.3d 934
934 N.Y.2d 710

In 2002, the appellant, an attorney, and Sydonna J. were appointed to serve as co-guardians for the personal needs and property management of J., an incapacitated person. In four orders dated June 24, 2010, the appellant was authorized to withdraw the sums of $6,049.36 for 2003, $3,774.81 for 2004, $4,137.74 for 2005, and $5,897.97 for 2006 from the assets of the incapacitated person as compensation for her services as co-guardian. The appellant subsequently moved to be appointed as counsel to herself and Sydonna J. and for an award of an attorney‘s fee nunc pro tunc for the preparation of accountings in 2003, 2004, 2005, and 2006.

The Supreme Court providently exercised its discretion in denying that branch of the appellant‘s motion which was for an award of an attorney‘s fee nunc pro tunc for the preparation of accountings in 2003, 2004, 2005, and 2006. In her affidavit in support of the motion, the appellant “failed to meet the threshold burden of establishing that the services she performed were actually legal in nature rather than administrative” (Matter of Marion B., 11 AD3d 222, 223 [2004], citing Matter of Passuello, 184 AD2d 108, 111 [1992]; see Matter of Nellie G. [Joyce G.D.], 74 AD3d 1065, 1066 [2010]; cf. Matter of Swingearn, 59 AD3d 556, 557 [2009]). Mastro, A.P.J., Florio, Lott and Cohen, JJ., concur.