Simone-Smith v. Edwinn

204 A.D.2d 210, 612 N.Y.S.2d 135

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered November 19, 1992, which, insofar as appealed from, awarded respondent’s guardian ad litem a supplemental fee in the amount of $2,500 to be paid by petitioner’s attorney, and denied petitioner’s cross motion for sanctions against the guardian ad litem and for recusal of the IAS Court, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of reducing the fee to be paid by petitioner’s attorney to $1,500, and otherwise affirmed, without costs.

It was within the discretion of the IAS Court to direct petitioner’s attorney to pay the guardian ad litem an additional fee (CPLR 1204), where the court found that petitioner’s attorney, after agreeing to the payment of the guardian ad litem out of the Chemical Bank proceeds, then submitted an ex parte "counter proposed order” to deny such payment (which was rejected), following which he filed an appeal that was never perfected. Given such conduct, we agree that the additional fee should be borne by counsel, rather than by petitioner, the truly wronged party. We find, however, that $1,500 is more appropriate compensation for the additional services, and modify to that extent. We have considered petitioner’s attorney’s other arguments and find them to be without merit. Concur—Sullivan, J. P., Carro, Ellerin, Wallach and Rubin, JJ.