IN RE: Americo PAGLIUGHI (2026)

DECISION & ORDER

In a probate proceeding in which Jean M. Pagliughi, the former executor of the estate of Americo Pagliughi, petitioned to judicially settle her account of the estate, Jean M. Pagliughi appeals from an order of the Surrogate's Court, Suffolk County (James F. Quinn, S.), dated April 1, 2024.  The order, insofar as appealed from, denied that branch of the motion of Jean M. Pagliughi which was pursuant to SCPA 711 to remove Jacqueline Brown and Matthew Brown as administrators of the estate of Americo Pagliughi and the separate motion of Jean M. Pagliughi, inter alia, for summary judgment on that branch of the second amended petition which was for an award of attorneys' fees and disbursements in connection with a medical malpractice action commenced on behalf of the estate.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Jean M. Pagliughi, a daughter of Americo Pagliughi (hereinafter the decedent), was named in the decedent's will as the executor of the decedent's estate and trustee of the trust therein created.  The decedent died on February 11, 2014.  In his will, with the exception of a specific bequest of certain personal property, the decedent bequeathed all of the assets of his estate to his wife in trust and, upon her death, to two of his grandchildren, Jacqueline Brown and Matthew Brown (hereinafter together the Browns).

In May 2014, Jean filed a petition for probate of the decedent's will, letters testamentary, and letters of trusteeship, which was granted in a decree dated July 17, 2014.  Jean, an attorney, thereafter retained herself as counsel for the decedent's estate and commenced a medical malpractice action as the executor of the decedent's estate.  That action resulted in a settlement in the sum of $250,000 for the decedent's pain and suffering.

The Browns petitioned the Surrogate's Court to suspend, modify, or revoke the letters testamentary issued to Jean, alleging, inter alia, that she removed property of the estate to Vermont.  In January 2018, the court directed Jean to file an accounting for the decedent's estate.  In March 2018, Jean filed an accounting.  On September 19, 2018, Jean and the respondents entered into a stipulation whereby Jean agreed to resign as executor of the decedent's estate and the Browns agreed to withdraw certain proceedings against her.  After Jean resigned as executor, she received the settlement check in the sum of $250,000 for the medical malpractice action, which was made out to “JEAN M. PAGLIUGHI, AS EXECUTRIX OF THE ESTATE OF AMERICO A. PAGLIUGHI.”  Jean deposited the check into her IOLA account.  Pursuant to a stipulation, Jean sent the net settlement proceeds to the Browns' counsel to be held in escrow.

Thereafter, in April 2019, the Browns were issued letters of administration c.t.a. with the limitation that the Browns were “prohibited from receiving or distributing any money resulting” from the medical malpractice action without further order of the court.  In October and November 2019, the Browns' counsel sent the Browns the balance of the proceeds of the settlement in the medical malpractice action.  In November 2020, Jean filed an amended accounting.  In February 2022, Jean filed a second amended accounting and a second amended petition to judicially settle her account in which she sought an award of attorneys' fees and disbursements in the sum of $84,261.10 for her work as an attorney in the medical malpractice action.  The Browns filed objections to each of Jean's accountings.

Thereafter, Jean moved, among other things, pursuant to SCPA 711 to remove the Browns as administrators of the decedent's estate.  Jean separately moved, inter alia, for summary judgment on that branch of the second amended petition which was for an award of attorneys' fees and disbursements in connection with the medical malpractice action.  In an order dated April 1, 2024, the Surrogate's Court, among other things, denied that branch of the motion which was pursuant to SCPA 711 to remove the Browns as administrators of the decedent's estate and denied the separate motion, inter alia, for summary judgment on that branch of the second amended petition which was for an award of attorneys' fees and disbursements in connection with the medical malpractice action.  Jean appeals.

“Pursuant to SCPA 719, the Surrogate's Court may ‘make a decree suspending, modifying or revoking letters issued to a fiduciary from the court ․ without a petition or the issuance of process’ where, among other things, ‘any of the facts provided in [SCPA] 711 are brought to the attention of the court’ ” (Matter of Cozzoli, 224 AD3d 747, 748, quoting SCPA 719[10];  see Matter of Duke, 87 N.Y.2d 465, 472–473;  Matter of Mercer, 119 AD3d 689, 691).  Under SCPA 711, removal is warranted if the fiduciary willfully refused or without good cause neglected to obey any lawful direction of the court contained in any decree or order (see id. § 711[3] ).  However, “[w]hile courts have the power to remove a fiduciary, that power is exercised sparingly and only where the record demonstrates a danger to the estate or trust if removal is denied” (Matter of Cozzoli, 224 AD3d at 749 [internal quotation marks removed];  see Matter of Epstein, 202 AD3d 669, 671).

Here, Jean failed to show that the decedent's estate was in danger if the Browns were not immediately removed as administrators of the decedent's estate.  Therefore, the Surrogate's Court properly denied that branch of her motion which was to remove the Browns as administrators of the decedent's estate (see Matter of Francis v Bourke Francis & Padraig Francis Irrevocable Trust, 230 AD3d 1239, 1241;  Matter of Petrocelli, 307 AD2d 358, 360).

“The Surrogate's Court has broad discretion to determine what constitutes a reasonable attorney's fee for ․ services” rendered to a decedent's estate, “regardless of the terms of a retainer agreement or other agreement between the parties” (Matter of Hart, 241 AD3d 1469, 1471;  see Matter of Brody, 202 AD3d 781, 782).  The Surrogate's Court “is in the best position to assess the factors essential to fix an attorney's fee, such as time and labor, difficulty of the questions involved, the amount involved, counsel's experience, ability, and reputation, and the customary fee charged for such services” (Matter of Brody, 202 AD3d at 782–783 [citation and internal quotation marks omitted];  see Matter of Linder, 153 AD3d 1343, 1345;  Matter of Cincotta, 139 AD3d 1058, 1059).

Here, Jean failed to eliminate all triable issues of fact in moving for summary judgment on that branch of the second amended petition which was for an award of attorneys' fees and disbursements in connection with the medical malpractice action (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).  Accordingly, the Surrogate's Court properly denied that branch of Jean's motion which was for summary judgment on that branch of the second amended petition.

Jean's remaining contentions are without merit.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.