IN RE: Edward JOHNSON also known as Edward D. Johnson (2024)

Amended decree, Surrogate's Court, New York County (Rita Mella, S.), entered March 24, 2023, bringing up for review orders, same court and Surrogate, entered March 22, 2023 and October 14, 2022, insofar as they disallowed respondent Sheryl R. Menkes's claim for disbursements of $4,921.31 and $2,976.22, deducted $9,375 from her award of attorneys’ fees as reimbursement of the expenses of claimant William S. Friedlander, and determined that collection of less than the amount of the judgment plus interest, costs, and disbursements was not detrimental to the estate, unanimously affirmed, with costs.

The court providently exercised its broad discretion in declining to reimburse respondent for $2,976.22 and $4,921.31 in disbursements based on the court's reasonable assessment of the likely recovery in the action and the finding that those expenses were not warranted (see Matter of Hofmann, 38 A.D.3d 366, 366–367, 832 N.Y.S.2d 508 [1st Dept. 2007], lv denied 9 N.Y.3d 801, 840 N.Y.S.2d 566, 872 N.E.2d 252 [2007]).

The court's determination that respondent entered into an agreement with claimant to reimburse his expenses was supported by the record, including a February 24, 2016 email in which respondent electronically signed a revised retainer agreement which provided that she would pay his expenses, and a series of emails between them in which she reiterated her agreement.  Although respondent argued that she agreed to pay claimant's expenses under duress because he threatened to quit as trial counsel on the eve of trial, she did not demonstrate both a wrongful threat and that the threat had the effect of precluding the exercise of her free will (see Philips S. Beach, LLC v. ZC Specialty Ins. Co., 55 A.D.3d 493, 493, 867 N.Y.S.2d 386 [1st Dept. 2008], lv denied 12 N.Y.3d 713, 2009 WL 1586786 [2009]).  In addition, she did not promptly repudiate the agreement after the trial (see Wujin Nanxiashu Secant Factory v. Ti–Well Intl. Corp., 14 A.D.3d 352, 353, 788 N.Y.S.2d 78 [1st Dept. 2005]).

The court's negative comments regarding respondent's recordkeeping were dicta and, thus, are not appealable.  In any event, the court's comments were justified by respondent's numerous contradictory revisions to her claimed disbursements and her filing of the retainer agreement ten years after it was due.

We have considered respondent's remaining arguments and find them unavailing.