In re Hooker Avenue Department Store, Inc.

Appellate Division of the Supreme Court of New York

In re Hooker Avenue Department Store, Inc.

74 A.D.2d 873, 426 N.Y.S.2d 36, 1980 N.Y. App. Div. LEXIS 10655

Appellate Division of the Supreme Court of the State of New York·Decided March 17, 1980·Published·Cited by 1 cases

Opinion

In a proceeding to settle the account of an assignee for the benefit of creditors and for an award of attorney’s fees, the assignee appeals from an order of the Supreme Court, Dutchess County, dated May 31, 1979, which denied his motion for "reargument” of [874] his motion for attorney’s fees. (The motion was, in fact, one for renewal.) Order modified, on the facts, by adding thereto, immediately after the word "denied”, the following: "except that an attorney’s fee of $1,000 is awarded.” As so modified, order affirmed, without costs or disbursements. As new facts were presented in the papers supporting this motion, it was in reality a motion to renew, and the denial thereof is appealable (see Gold v Travelers Ins. Co., 263 App Div 817). After all of the debtor’s assets had been reduced to cash, its gross estate totaled $6,535.50. The net estate after charges was $4,901.52. The attorney for the assignee submitted a work sheet showing 48 hours of work, and requesting a fee of $2,000. While we do not believe that the fee sought is appropriate, we nevertheless can find no support in the law for the conclusion of Special Term that an attorney’s fee cannot exceed the assignee’s commission. In our view, a fee of $1,000 would be proper herein. Hopkins, J. P., Lazer, Margett and Weinstein, JJ., concur.

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In a proceeding to settle the account of an assignee for the benefit of creditors and for an award of attorney’s fees, the assignee appeals from an order of the Supreme Court, Dutchess County, dated May 31, 1979, which denied his motion for "reargument” of [874] his motion for attorney’s fees. (The motion was, in fact, one for renewal.) Order modified, on the facts, by adding thereto, immediately after the word "denied”, the following: "except that an attorney’s fee of $1,000 is awarded.” As so modified, order affirmed, without costs or disbursements. As new facts were presented in the papers supporting this motion, it was in reality a motion to renew, and the denial thereof is appealable (see Gold v Travelers Ins. Co., 263 App Div 817). After all of the debtor’s assets had been reduced to cash, its gross estate totaled $6,535.50. The net estate after charges was $4,901.52. The attorney for the assignee submitted a work sheet showing 48 hours of work, and requesting a fee of $2,000. While we do not believe that the fee sought is appropriate, we nevertheless can find no support in the law for the conclusion of Special Term that an attorney’s fee cannot exceed the assignee’s commission. In our view, a fee of $1,000 would be proper herein. Hopkins, J. P., Lazer, Margett and Weinstein, JJ., concur.

In re Hooker Avenue Department Store, Inc., 74 A.D.2d 873, 426 N.Y.S.2d 36, 1980 N.Y. App. Div. LEXIS 10655 (N.Y. Ct. App. 1980).

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Opinion

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