Matter of Garcia

2017 NY Slip Op 4398, 151 A.D.3d 455, 55 N.Y.S.3d 42

Opinion

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered March 16, 2015, which, insofar as appealed from as limited by the brief, found that appellant’s compensation as a co-property guardian should be based on quantum meruit, unanimously affirmed, without costs.

Although the initial guardianship order provided that appellant would be compensated pursuant to SCPA 2309, the court had the discretion to change the method of computing his compensation based on the services he actually rendered, rather than the value of the trust assets (see Matter of Goldstein v Zabel, 146 AD3d 624, 625 [1st Dept 2017]). The court was not required to make a finding of malfeasance or misconduct in order to make the change (id. at 630).

Appellant argues that he is prejudiced because he failed to keep time records for a portion of the period he served as a co-guardian because he relied on the provisions of the initial guardianship order. However, Mental Hygiene Law § 81.28 (a) clearly provided the court with the power to modify the plan for reasonable compensation for appellant’s services. The court properly found that appellant’s compensation may be based on a detailed affirmation of the services rendered.

Concur—Renwick, J.P., Richter, Feinman, Gische and Kahn, JJ.