IN RE: Teresa DRISCOLL (2000)

In a proceeding pursuant to SCPA 2110 to fix an attorney's fee, William A. Egan, Jr., the former attorney for the nominated Executor of the Estate of Teresa Driscoll, appeals from an order of the Surrogate's Court, Westchester County (Emanuelli, S.), dated March 31, 1999, which denied his motion for summary judgment fixing his fee in the full sum demanded in his petition.

ORDERED that the order is affirmed, with costs payable by the appellant personally.

 The appellant contends that the Surrogate erred in denying his motion for summary judgment because the general denial contained in the respondent's answer was insufficient to raise an issue of fact as to the reasonable value of his services (see, CPLR 3016[f] ).   We disagree.   It is well settled that the Surrogate bears the ultimate responsibility of deciding what constitutes reasonable legal fees, regardless of the existence of a retainer agreement (see, Matter of Pekofsky v. Estate of Cohen, 259 A.D.2d 702, 686 N.Y.S.2d 837;  Matter of Stern, 227 A.D.2d 636, 643 N.Y.S.2d 395;   Matter of Nicastro, 186 A.D.2d 805, 589 N.Y.S.2d 94;  Matter of Verplanck, 151 A.D.2d 767, 543 N.Y.S.2d 138).   The Surrogate's inherent authority to supervise the fees which attorneys charge for legal services may be exercised even where all parties have knowingly consented to payment of the requested fee (see, Matter of Stortecky v. Mazzone, 85 N.Y.2d 518, 525-526, 626 N.Y.S.2d 733, 650 N.E.2d 391).   Accordingly, the Surrogate properly denied the appellant's request to summarily fix his fee in the amount demanded in his petition.

 We further note that the Surrogate has jurisdiction to determine, and is in the best position to determine, which legal services performed by the appellant benefitted the estate, and which benefitted only the individual interests of the respondent as nominated executrix and legatee (see, N.Y. Const., art. VI, § 12[d];  SCPA 209[10];  Matter of Steinberg, 262 A.D.2d 80, 692 N.Y.S.2d 32;  Matter of Graham, 238 A.D.2d 682, 656 N.Y.S.2d 434;  Rosenman & Colin v. Winston, 205 A.D.2d 451, 613 N.Y.S.2d 893).   To the extent that the appellant's services benefitted only the respondent and not the estate, the Surrogate may direct the respondent to personally pay a reasonable fee (see, Matter of Levine, supra;  Matter of Graham, supra).

MEMORANDUM BY THE COURT.