Matter of Garcia

Appellate Division of the Supreme Court of New York

Matter of Garcia

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

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

DecidedJune 6, 2017

Docket4177 92502/08

StatusPublished

This text of 2017 NY Slip Op 4398 (Matter of Garcia) 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 Garcia, 2017 NY Slip Op 4398, 151 A.D.3d 455, 55 N.Y.S.3d 42 (N.Y. Ct. App. 2017).

Pincite

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 *456 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.

Free access — add to your briefcase to read the full text and ask questions with AI

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 *456 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.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 4398, 151 A.D.3d 455, 55 N.Y.S.3d 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-garcia-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack