ESTATE OF ADELSON v. << (2017)

The following papers numbered 1 to 3 read on these motions:

Upon the foregoing papers, the Office of the Attorney General of the State of New York (“Attorney General”) moves in the above listed eighty-three estates for an order:

(a) Determining that Louis R. Rosenthal and his firm are not entitled to any legal fees for any services he or his firm rendered to the Public Administrator for Kings County in connection with these estates.

(b) Directing Louis R. Rosenthal to repay to the Public Administrator, for distribution to the relevant estate, all amounts that Louis R. Rosenthal or his firm were paid for any services rendered to the Public Administrator, plus interest at the legal rate from the date of the original degree in that estate until the date of repayment.

The present motions emanate out of a series of motions previously brought by the Attorney General to vacate the award of attorneys' fees to Louis R. Rosenthal (“Rosenthal”), as counsel to the Public Administrator, in decrees entered during the period January 1, 1997 through May 31, 2002 in estates administered by the Kings County Public Administrator.

The court (Johnson, S.) decided these motions vacating that portion of the decrees which approved and awarded attorneys' fees to Rosenthal and ordered him to submit within sixty days affidavits of legal services in each of the estates conforming to the requirements of SCPA § 1108(2)(c). The Orders provided that if Rosenthal failed to submit the affidavits, the Attorney General could move for appropriate relief (In re Adelson 35 Misc.3d 1215(A)[2009] aff'd 83AD3d 952) [2d Dept 2011]. In response to the failure of Rosenthal to submit the required affidavits of legal services the Attorney General brought the present motions.

In opposition to the present eighty-three motions, Rosenthal had argued, inter alia, that these proceedings should be transferred to another county citing, Matter of Greenfield, 127 AD3d 1189 (2d Dept 2015). The court (Johnson, S.) in a decision dated October 14, 2015, held these motions in abeyance pending application to and determination by the Deputy Chief Administrative Judge for the New York City Courts as to where these motions would be transferred for disposition. By Administrative Transfer Order No.78, dated June 20, 2017, these eight-three matters were assigned to this Court (Ingram A.S.), to hear and determine all proceedings, including trial, in or related to these matters.

The Surrogate's Court Procedure Act (“SCPA”) 1108(2)(c) provides that any legal fees allowed by the court as compensation to counsel for the public administrator, “shall be supported by an affidavit of legal services setting forth in detail the services rendered, the time spent, and the method or basis by which the requested compensation was determined”.

The Court of Appeals in Matter of Feinberg, (5 NY3d 206 [2005] ) specifically found that former Surrogate Feinberg neither required Rosenthal to submit affidavits of legal services, nor determined his fees based on consideration of the statutory factors specified in SCPA § 1108(2)(c). As such in order to fix Rosenthal's fees this Court must perform the statutorily required review of the fees requested in each estate.

In the affirmations in opposition to the Attorney General's present motions it is affirmed in paragraph eleven thereof that, “[e]ach of these estates were handled approximately over a decade ago and it is literally impossible for Louis R. Rosenthal to detail the services rendered, the time spent on each task, and the method or basis used for determining the legal fee assessed.”

As Rosenthal has conceded that he cannot supply the Court with affidavits of legal services in conformity with SCPA § 1108(2)(c), the Court cannot ascertain whether the fees are justified by the services rendered. A review the of statutory factors is not discretionary. As was pointed out by the Court of Appeals in Matter of Feinberg, supra “the plain language of SCPA 1108(2)(c) directs a surrogate to review the statutory factors prior to compensating counsel”.¹

As Rosenthal cannot provide the Court with affidavits of legal services in conformity with SCPA § 1108(2)(c), he is directed to repay to the Public Administrator, for distribution to the relevant estate, all amounts that he or his firm were paid for any services rendered to the Public Administrator, plus interest at the legal rate from the date of the original decree in that estate until the date of repayment.

Settle Decree

FOOTNOTES

1.  So obligatory is the review of statutory factors of SCPA § 1108(2)(c) in awarding legal fees that the failure to do so has been found to be a violation of 22NYCRR 100.3(B)(1), which requires a judge to be faithful to the law and maintain professional competence in it (see Matter of Feinberg 5 NY3d at 213).

JOHN G. INGRAM, J.