IN RE: the Application for the Appointment of a Guardian of the Property of RALPH C. (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment insofar as appealed from is unanimously reversed on the law without costs and that part of the application seeking an award of counsel fees is granted, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum:  Appellant was appointed as the guardian of a now-deceased incapacitated person (IP).  Following the IP's death, the guardian filed its final accounting and applied to discharge the guardianship.  As part of its application, the guardian sought permission to disburse guardianship property that it had retained to cover its counsel fees in connection with the guardianship.  As limited by its brief, the guardian now appeals from an order that, inter alia, denied its request for counsel fees and directed it to return the funds retained for that purpose to the IP's estate (see Mental Hygiene Law § 81.44[d]).

Preliminarily, we note that the interlocutory order appealed from was subsumed in a final order and judgment, the entry of which terminated the guardian's right to appeal from the interlocutory order (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976]).  We nevertheless exercise our discretion under CPLR 5520(c) to treat the notice of appeal as valid, and we deem the appeal to have been taken from the final order and judgment (see Teitelbaum v. North Shore–Long Is. Jewish Health Sys., Inc., 160 A.D.3d 1009, 1010, 76 N.Y.S.3d 185 [2d Dept. 2018];  People ex rel. Johnson v. O'Flynn, 141 A.D.3d 1107, 1107–1108, 35 N.Y.S.3d 613 [4th Dept. 2016]).

On the merits, we agree with the guardian that Mental Hygiene Law § 81.44(e) authorizes its retention of a reasonable amount of guardianship property for the purpose of paying its counsel fees in connection with the guardianship.  Section 81.44(e) provides, in relevant part, that a guardian may retain “guardianship property equal in value to the claim for administrative costs, liens and debts,” and we have held that the “administrative expenses” of a guardianship—i.e., the administrative costs, liens and debts referenced in the statute—include reasonable “counsel fees incurred in providing services to [the guardian]” (Matter of Banks [Charlie B.H.], 108 A.D.3d 1055, 1056, 970 N.Y.S.2d 141 [4th Dept. 2013];  see also Matter of Karl, 266 A.D.2d 392, 393, 701 N.Y.S.2d 66 [2d Dept. 1999];  see generally Matter of Shannon, 25 N.Y.3d 345, 347–353, 34 N.E.3d 351 [2015]).  We therefore reverse the order and judgment insofar as appealed from, and we remit the matter to Supreme Court to fix a reasonable award of counsel fees (see Banks, 108 A.D.3d at 1055–1056, 970 N.Y.S.2d 141).