Katz v. Brody (In re Brody)

202 A.D.3d 781

158 N.Y.S.3d 853 (Mem)

In the MATTER OF Beulah BRODY, etc., deceased.

Merryl K. Katz, petitioner-appellant;

v.Paul E. Brody, et al., respondents-respondents.

(Proceeding No. 1)

In the Matter of Beulah Brody, etc., deceased.

Paul E. Brody, etc., petitioner-respondent;

v.Merryl K. Katz, respondent-appellant;

Farrell Fritz, P.C., nonparty-respondent.

(Proceeding No. 2)

2019–01176, 2019–01178

File No. 4411/11

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 15, 2021

February 9, 2022

Cohen & Schwartz, LLP, Manhasset, NY (Joel M. Schwartz and Marilyn Q. Anderson of counsel), for Merryl K. Katz, petitioner-appellant in Proceeding No. 1 and respondent-appellant in Proceeding No. 2.

Farrell Fritz, P.C., Uniondale, NY (Frank T. Santoro and Edward D. Baker of counsel), respondent-respondent pro se in Proceeding No. 2, and for Paul E. Brody, respondent-respondent in Proceeding No. 1 and petitioner-respondent in Proceeding No. 2.

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In two proceedings pursuant to SCPA 2110 to fix and determine counsel fees, Merryl K. Katz appeals from two orders of the Surrogate's Court, Queens County (Peter J. Kelly, S.), both dated December 10, 2018. The first order denied that branch of the petition of Merryl K. Katz which were to direct the residuary beneficiaries of the decedent's estate to pay their respective shares of the legal fees and expenses incurred by her which resulted in the enrichment of the estate, and, in effect, denied those branches of the petition which were for a determination that all of the legal services performed by Farrell Fritz, P.C., that were related to the decedent's estate were performed solely for the benefit of Paul E. Brody, individually, and that the fees and disbursements related to those services were therefore not chargeable to the decedent's estate, and to direct Farrell Fritz, P.C., to return to the estate any monies paid to it that exceeded the reasonable value of the services rendered by it. The second order, insofar as appealed from, granted the petition of Paul E. Brody to the extent of awarding Farrell Fritz, P.C., legal fees in the amount of $155,000 for legal services rendered to Paul E. Brody, as executor of the decedent's estate, to be paid from the assets of the decedent's estate.

ORDERED that the first order is affirmed; and it is further,

ORDERED that the second order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to Paul E. Brody and Farrell Fritz, P.C.

Following protracted litigation regarding the estate of Beulah Brody, Merryl K. Katz commenced a proceeding pursuant to SCPA 2110 seeking, inter alia, a determination that all of the legal services performed by Farrell Fritz, P.C. (hereinafter Farrell Fritz), the attorneys for the executor of the estate, Paul E. Brody (hereinafter Brody), that were related to the estate were performed solely for the benefit of Brody, individually, rather than as executor, and that the fees and disbursements related to those services were therefore not chargeable to the estate. Katz also sought to direct Farrell Fritz to return to the estate any monies paid to it that exceeded the reasonable value of the services rendered by it. Katz further sought to direct the residuary beneficiaries of the estate to pay their respective shares of the legal fees and expenses incurred by her which resulted in the enrichment of the estate. Brody commenced a separate proceeding requesting that the Surrogate's Court fix and approve Farrell Fritz's legal fees of $171,761.75 and authorizing him to pay the unpaid balance from the decedent's estate.

By two separate orders, both dated December 10, 2018, the Surrogate's Court denied Katz's petition and granted Brody's petition to the extent of awarding Farrell Fritz legal fees in the amount of $155,000 for legal services rendered to Brody, as executor of the decedent's estate, to be paid from the assets of the estate. Katz appeals from both orders.

The Surrogate's Court providently exercised its discretion in denying that...