IN RE: R.F.S. (2025)

Amended order, Supreme Court, New York County (Carol Sharpe, J.), entered February 27, 2024, which, to the extent appealed from as limited by the briefs, awarded Mental Hygiene Law article 81 guardian Brian A. Raphan, Esq. $319,972.49 in legal fees and statutory commissions, unanimously affirmed, without costs.

Objectant Ika Brakha failed to establish that Supreme Court abused its discretion in determining Raphan's fair and reasonable compensation under Mental Hygiene Law § 81.28 (see Matter of Krausz, 204 A.D.3d 500, 500-501, 164 N.Y.S.3d 454 [1st Dept. 2022];  Matter of Moriarty, 119 A.D.3d 445, 445, 988 N.Y.S.2d 496 [1st Dept. 2014]).  In determining Raphan's fair and reasonable compensation, the court appropriately considered Raphan's extensive involvement in the litigation against the former article 81 guardian.  The award compensating Raphan for legal fees and awarding him a commission pursuant to Surrogate's Court Procedure Act § 2307 did not amount to an improper “double recovery” (Matter of Arnold O., 279 A.D.2d 774, 776-777, 719 N.Y.S.2d 174 [3d Dept. 2001]).

The court also properly compensated Raphan for time spent preparing his account.  Mental Hygiene Law § 81.28(a) provides that “[t]he plan for compensation of such guardian must take into account ․ the services provided to the incapacitated person by such guardian” and does not prohibit the court from awarding fees to the guardian for preparing the statutorily required final account (see Mental Hygiene Law § 81.33).  Moreover, in analogous circumstances, this Court has awarded attorneys' fees, including so-called fees on fees (see e.g. Kumble v. Windsor Plaza Co., 161 A.D.2d 259, 260-261, 555 N.Y.S.2d 290 [1st Dept. 1990], appeal dismissed 76 N.Y.2d 843, 560 N.Y.S.2d 126, 559 N.E.2d 1285 [1990], lv denied 76 N.Y.2d 709, 561 N.Y.S.2d 913, 563 N.E.2d 284 [1990] (Real Property Law § 234);  Posner v. S. Paul Posner 1976 Irrevocable Family Trust, 12 A.D.3d 177, 179, 784 N.Y.S.2d 509 [1st Dept. 2004] (former Debtor and Creditor Law § 276-a)).

Further, Brakha's contention that a fee of $550 an hour is higher than what is customary is unpreserved as it was raised for the first time in reply.  Even were we to consider this argument, we would find it unavailing.

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