IN RE: THE JUDICIAL SETTLEMENT OF FINAL ACCOUNT OF MANUFACTURERS AND TRADERS TRUST COMPANY (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: THE JUDICIAL SETTLEMENT OF FINAL ACCOUNT OF MANUFACTURERS AND TRADERS TRUST COMPANY, PETITIONER-RESPONDENT-APPELLANT, AS EXECUTOR UNDER LAST WILL AND TESTAMENT OF

CA 09-01787

Decided: April 30, 2010

PRESENT: MARTOCHE, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

WILLIAMS & WILLIAMS, ROCHESTER (MITCHELL T. WILLIAMS OF COUNSEL), FOR RESPONDENTS-APPELLANTS-RESPONDENTS PETER ADAMS AND CYNTHIA ADAMS, INDIVIDUALLY AND AS TESTAMENTARY TRUSTEES OF THEIR CHILDREN ARMAND ADAMS AND MAXINE ADAMS. HARRIS BEACH PLLC, PITTSFORD (ANDREW Q. CONROY OF COUNSEL), FOR RESPONDENT-APPELLANT-RESPONDENT MARC ADAMS. HISCOCK & BARCLAY, LLP, SYRACUSE (JOHN D. COOK OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT.

MEMORANDUM AND ORDER

PETER ADAMS AND CYNTHIA ADAMS, INDIVIDUALLY AND

AS TESTAMENTARY TRUSTEES OF THEIR CHILDREN

ARMAND ADAMS AND MAXINE ADAMS, AND MARC ADAMS,

RESPONDENTS-APPELLANTS-RESPONDENTS.

Appeals and cross appeal from an order of the Surrogate's Court, Onondaga County (Peter N. Wells, S.), entered December 17, 2008. The order, among other things, denied that part of respondents' motion for an award of counsel fees.

It is hereby ORDERED that said cross appeal is unanimously dismissed and the order is otherwise affirmed without costs.

Memorandum: Petitioner commenced this proceeding as the executor of decedent's estate seeking approval of its account. Respondents, the beneficiaries of the estate, filed various objections. Following a trial, Surrogate's Court concluded, inter alia, that petitioner was negligent in its fiduciary duty by failing to discover certain assets of the estate consisting of a block of IBM stock, and the Surrogate imposed a surcharge for petitioner's failure to marshal the estate assets and sell that stock. Respondents thereafter moved for, inter alia, an award of counsel fees, and the Surrogate refused to award such fees. Although it is well settled that a Surrogate has the discretion to order a fiduciary to pay counsel fees (see generally Matter of Garvin, 256 N.Y. 518, 521; Matter of Manufacturers & Traders Trust Co., 66 AD3d 1377, 1380-1381; Matter of Birnbaum v. Birnbaum, 157 A.D.2d 177, 191), here, the Surrogate did not abuse his discretion in refusing to award counsel fees based on his conclusion that there was no evidence of bad faith, fraud, self-dealing or theft (see Matter of Saxton, 274 A.D.2d 110, 121). We further conclude, based on the colloquy during oral arguments before the Surrogate, that he was aware that he had the discretion to order petitioner to pay counsel fees. In light of our determination, we dismiss petitioner's cross appeal as moot.

Patricia L. Morgan

Clerk of the Court

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