IN RE: the Former Guardianship of Uchechukwu A.

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

IN RE: the Former Guardianship of Uchechukwu A., et al., Infants, Sebastian Ibezim, Esq., et al., Petitioners–Appellants, v. Victoria Ajala, Respondent–Respondent.

1250 8 3314 02 1250 8 3668 05 1250 8 3669 05 3670 05

Decided: May 15, 2014

Mazzarelli, J.P., Andrias, DeGrasse, Manzanet–Daniels, Feinman, JJ. Nnebe & Associates, P.C., Brooklyn (O. Valentine Nnebe of counsel), for appellants. LePatner & Associates, LLP, New York (Harry J. Petchesky of counsel), for respondent.

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Orders, Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about September 19, 2012, which denied the petitions of Sebastian Ibezim, Jr., Esq. and Okechukwu Valentine Nnebe, Esq. (appellants) for attorneys' fees and expenses pursuant to Surrogate's Court Procedure Act § 2110, unanimously affirmed, without costs, and without prejudice to bringing a future petition if Surrogate's Court decides that Victoria Ajala is not a distributee.

It was not an improvident exercise of the Surrogate's discretion (see Matter of Hyde, 15 NY3d 179, 186 n 5 [2010] ) to deny the subject petitions.   An award of counsel fees and expenses is “dependent upon a finding that [counsel's] services were necessary and beneficial to the estate” (Matter of Hofmann, 284 A.D.2d 92, 95 [1st Dept 2001] ).   It is true that “benefit is not limited solely to a monetary increase in the estate value.   For example, establishing the kinship of distributees of the decedent has been considered a benefit to the estate” (Matter of Poletto, 31 Misc.3d 1206[A], 2011 N.Y. Slip Op 50504[U], *4 [Sur Ct, Monroe County 2011] ).   However, up to this point, the Surrogate's Court has made no order establishing whether or not Victoria Ajala is a distributee.   Accordingly, appellants' arguments about whether comity should be accorded the Nigerian court decisions about Victoria's marriage to decedent are premature.

In light of our finding that appellants have not established that their services benefited the estate, it is unnecessary to consider their contention that their client did not act in bad faith.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK