MHL ARTICLE 81 - New York State Unified Court System

applied to Supreme Court and was granted an extension of its powers until a temporary or permanent
administrator of the estate was appointed. Thereafter, the Surrogate Court appointed the bank as
temporary co-administrator of the estate because it’s intimate familiarity with the assets would avoid
costly duplicate efforts by a new administrator to familiarize itself with the assets.
Matter of Lee J.P. (Bond), 45 A.D.3d 774; 847 N.Y.S.2d 110 (2nd Dept., 2007)
Where the AIP died before the proceedings were completed and a guardian was appointed, the court
issued an order and judgement terminating the proceeding. That same Order and judgement also
directed one of the AIP’s sisters to repay a sum of money to the AIP’s estate based upon the
allegation that she had misappropriated those funds. The Appellate Division held that the latter
directive must be reversed because the trial court had no authority to proceed beyond a dismissal of
the proceeding as academic except for allowing reasonable compensation to the court evaluator and
counsel.
In the Matter of Enna D., 30 A.D.3d 518; 816 N.Y.S.2d 368 (2nd Dept., 2006)
Following the death of the AIP, the guardianship proceeding abated. Thereafter, Supreme Court
lacked the authority to award an attorney's fee to the attorney retained by the petitioner, as §81.10[f],
§81.16[f] do not authorize such an award, following the death of the AIP to attorneys other than
those appointed by the court.
rd
Estate of Rose BB, 16 A.D.3d 801; 791 N.Y.S.2d 201 2005 (3 Dept. 2005), revised judgement
rd
affirmed 35 A.D.3d 1044; 826 N.Y.S.2d 791(3 Dept. 2006)
IP died and the guardianship proceeding was transferred to the Surrogate’s Court and consolidated
with a probate proceeding. The parties to the guardianship proceeding enter into a Stip on the
records agreeing that the Surrogates Court would determine the fees due the guardianship
proceeding. Guardian submitted final accounting in the Surrogates Court and it was later approved
by the Appellate Division. Petitioner in the Art 81 proceeding moved in Surrogates Court for
counsel fees pursuant to the Stip. and after hearing the Surrogates Court enters an order directing
payment of fees to be paid by the respondent in this appeal who was the other party to the stip.
Respondent argues that the petitioners fee was untimely but court finds that it was delayed by
appeals, some of which were required due to respondents behavior. Second, respondent argues that
the Surrogates Court cannot determine the fees due from the guardianship proceeding but the
Appellate Division rejects that argument holding that “when appropriate, counsel fees may be
awarded in situations where the misconduct of a fiduciary brings about the expense”.
Estate of Josephina Howard, NYLJ, 9/22/04, p. 26 (Surr Ct , NY Cty) (Surr Roth)
Where there was an accounting of an Art 81 being conducted in Supreme Court when the probate
proceedings was commenced, and there was a discovery motion in Surrogate’s Court dealing with
the same issues involved in the accounting proceeding, Surrogate Court marked the motion off the
calendar and referred the parties to Supreme Court.
228