Matter of Duell

Appellate Division of the Supreme Court of New York

Matter of Duell

121 A.D.3d 493, 994 N.Y.S.2d 858

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 14, 2014

Docket13204N 4835/77

StatusPublished

This text of 121 A.D.3d 493 (Matter of Duell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Duell, 121 A.D.3d 493, 994 N.Y.S.2d 858 (N.Y. Ct. App. 2014).

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Opinion

Decree, Surrogate’s Court, New York County (Rita Mella, S.), entered on or about August 1, 2013, to the extent appealed from as limited by the briefs, awarding petitioner $3,749,186.07 (representing $4,071,096.46 in executor’s commissions pursuant to Surrogate’s Court Procedure Act § 2307 [1], less $321,910.39 in surcharges, which represented some of objectants’ legal fees) and ordering that petitioner be reimbursed from the estate for his legal fees and costs in the amount of $2,052,847.60, unanimously modified, on the facts and in the exercise of discretion, to reduce the award by $3,787.50, representing an additional surcharge, and otherwise affirmed, with costs.

We defer to the Surrogate’s analysis of the benefits and detriments the executor provided to the estate in making an award of commissions.

We do, however, impose an additional surcharge of $3,787.50, representing the fees incurred by objectant Thea Duell and for *494 mer (now deceased) objectant Irene Duell to expand the powers of the court-appointed fiduciary so that he could end the deadlock between the two executors appointed by the will. These legal fees benefitted the estate as a whole (see Matter of Wallace, 68 AD3d 679 [1st Dept 2009]).

The Surrogate’s allowance of $2,052,847.60 of petitioner’s legal fees was proper (see e.g. Wallace, 68 AD3d at 680).

The Surrogate properly declined to award petitioner an additional $4,721,855.30 in commissions under SCPA 2307 (6). Petitioner’s own testimony shows that he already received rental commissions: Nonparty Morgan Holding received 5% of the gross rents and paid out all but a nominal amount of profit to petitioner and his coexecutor. Morgan’s expenses were properly deducted from the 5% (see Matter of Wendel, 159 Misc 900, 902 [Sur Ct, NY County 1935], affd 248 App Div 713 [1st Dept 1936], affd 273 NY 532 [1937]).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing.

Concur — Friedman, J.P, Moskowitz, Feinman, Gische and Kapnick, JJ.

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Decree, Surrogate’s Court, New York County (Rita Mella, S.), entered on or about August 1, 2013, to the extent appealed from as limited by the briefs, awarding petitioner $3,749,186.07 (representing $4,071,096.46 in executor’s commissions pursuant to Surrogate’s Court Procedure Act § 2307 [1], less $321,910.39 in surcharges, which represented some of objectants’ legal fees) and ordering that petitioner be reimbursed from the estate for his legal fees and costs in the amount of $2,052,847.60, unanimously modified, on the facts and in the exercise of discretion, to reduce the award by $3,787.50, representing an additional surcharge, and otherwise affirmed, with costs.

We defer to the Surrogate’s analysis of the benefits and detriments the executor provided to the estate in making an award of commissions.

We do, however, impose an additional surcharge of $3,787.50, representing the fees incurred by objectant Thea Duell and for *494 mer (now deceased) objectant Irene Duell to expand the powers of the court-appointed fiduciary so that he could end the deadlock between the two executors appointed by the will. These legal fees benefitted the estate as a whole (see Matter of Wallace, 68 AD3d 679 [1st Dept 2009]).

The Surrogate’s allowance of $2,052,847.60 of petitioner’s legal fees was proper (see e.g. Wallace, 68 AD3d at 680).

The Surrogate properly declined to award petitioner an additional $4,721,855.30 in commissions under SCPA 2307 (6). Petitioner’s own testimony shows that he already received rental commissions: Nonparty Morgan Holding received 5% of the gross rents and paid out all but a nominal amount of profit to petitioner and his coexecutor. Morgan’s expenses were properly deducted from the 5% (see Matter of Wendel, 159 Misc 900, 902 [Sur Ct, NY County 1935], affd 248 App Div 713 [1st Dept 1936], affd 273 NY 532 [1937]).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing.

Concur — Friedman, J.P, Moskowitz, Feinman, Gische and Kapnick, JJ.

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121 A.D.3d 493, 994 N.Y.S.2d 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-duell-nyappdiv-2014.

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