IN RE: Proceeding of Alfreida B. KENNY

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

IN RE: Proceeding of Alfreida B. KENNY, Guardian of the Property of Shirley I. Ellman, an Incapacitated Person. Alfreida B. Kenny, Appellant.

Decided: May 20, 2004

TOM, J.P., ELLERIN, LERNER, MARLOW, JJ. Alfreida B. Kenny, New York, appellant pro se.

Order, Supreme Court, New York County (William P. McCooe, J.), entered April 1, 2003, which, in a proceeding under Mental Hygiene Law article 81, denied appellant guardian's motion to amend an order, entered February 7, 2003, holding part of her commission in abeyance pending further explanation of certain items;  held the accountant's fee in abeyance pending the filing of an affidavit of services and a later decision as to whether the preparation of the annual account should be chargeable to appellant, and refused to reimburse appellant for office expenses, unanimously modified, on the law and the facts, to award appellant the remainder of her statutory commission ($9,717.15), and to permit her to pay the accountant's fee ($9,175) out of the incapacitated person's funds, and otherwise affirmed, without costs.

 The order appointing appellant, as amended, stated that her compensation was to be in accordance with SCPA 2307;  that she was to be reimbursed for all reasonable disbursements in administering the guardianship;  and that she could retain an accountant and pay up to $15,000 for that purpose without court order.   Thus, in the absence of any finding of wrongdoing on appellant's part, the IAS court was required to award appellant the full commission authorized by SCPA 2307(1) (see Matter of Turner, 307 A.D.2d 828, 763 N.Y.S.2d 571;  Matter of Arnold O., 279 A.D.2d 774, 777, 719 N.Y.S.2d 174), and the full amount of the accountant's fee, which was under $15,000, and in any event justified by an affidavit of services that indeed had been filed (see Turner, id.).   However, the IAS court properly refused to permit appellant to reimburse herself for office expenses from the incapacitated person's funds (see Matter of Graham, 238 A.D.2d 682, 687, 656 N.Y.S.2d 434).   Although appellant made the “threshold showing” that duplicating, postage, faxes, etc. were not included as part of her overhead or billing rate (see Perez v. Rodino, 184 Misc.2d 855, 859, 710 N.Y.S.2d 770), she did not show, for example, that her in-house photocopying reflected actual costs (see Matter of Lafferty, 297 A.D.2d 469, 470, 746 N.Y.S.2d 709), that there was no mark-up for long-distance faxes (id. at 471, 746 N.Y.S.2d 709), or that messengers and overnight delivery were used only when time was of the essence (see Matter of Aitken, 160 Misc.2d 587, 591, 610 N.Y.S.2d 436).