In re the Estate of Fales

294 A.D.2d 165, 741 N.Y.S.2d 414, 2002 N.Y. App. Div. LEXIS 4817

Opinion

—Order, Surrogate’s Court, New York County (Renee Roth, S.), entered on or about July 13, 2001, which denied respondent’s motion to modify the decree entered September 15, 1998, settling the trustee’s first intermediate accounting, by reducing the compensation allowed to the fiduciary’s attorneys, unanimously affirmed, with costs.

Respondent contends that he had notice only of a claim for a $5,000 counsel fee as part of petitioner’s intermediate accounting, but no notice of a claim for a $65,000 fee. Respondent claims that the alleged lack of notice amounted to a denial of due process, and raises several challenges to the fee provision in the decree. Respondent’s claim of a violation of due process, as well as his claims of estoppel, waiver and an ambiguous settlement agreement, are raised for the first time on appeal. In any event, the record shows that respondent had notice reasonably calculated to apprise him of the pendency of the proceeding and afford him an opportunity to present his objections (see, Matter of Case v Monroe Community Coll., 89 NY2d 438, 442). More specifically, respondent had repeated actual notice, personally or through his counsel, of the relevant requests for counsel fee approval. To the extent that the remainder of respondent’s appellate contentions are appropriately preserved, they are without merit. Concur— Andrias, J.P., Saxe, Ellerin, Marlow and Gonzalez, JJ.