This petition by Laura Klinski, preliminary executrix, pursuant to SCPA §2110, for an order authorizing her to pay estate legal fees and disbursements, is resolved as follows.

Van DeWater & Van DeWater, LLP represents the preliminary executrix. The firm requests approval of fees in the sum of $24,635.75 plus $933.18 for disbursements. Contemporaneous time records and an itemized list of disbursements are attached to the affidavit of legal services.

Christine Basler is the decedent's daughter and beneficiary under his will. She has filed an answering affidavit in which she consents to an initial fee not to exceed $7,500.00 or such amount as the court may determine (¶9). The New York Attorney General, on behalf of the ultimate charitable beneficiaries, has provided a copy of a stipulation, dated February 21, 2007. That document indicates that the Attorney General and the Van DeWater firm have agreed that the firm shall reduce its fee application by $1,796.00 and the preliminary executrix shall withdraw the request for legal fees of $835.00 charged by the firm for the sale of jointly held real property.

The surrogate bears the ultimate responsibility of deciding what constitutes a reasonable attorney's fee. (Matter of Tendler, 12 AD3d 520 [2d Dept. 2004].) The court has carefully examined the time records submitted by counsel in connection with this application, has taken into consideration the net effect of the stipulation, and applied the oft cited factors enumerated in Matter of Freeman, 34 NY2d 1, 9 [1974]. The sum of $22,839.75 is fair and reasonable under the circumstances.

The recovery of disbursements is a different issue. Overhead expenses of a law firm are not compensable, as they are included in the hourly rate by the attorney. (8 Warren's Heaton on Surrogate's Court Practice, Seventh Edition, §106.02[2][a].) They include photocopying, messenger services, lunches, postage, local travel, parking, and long distance telephone charges. (8 Warren's Heaton, supra; 7 Warren's Heaton, §93.07[8]; In re Butler, NYLJ, 11/20/1998, at 35 [Sur. Ct., Westchester County].) Express mail, priority mail, insured mail and registered mail expenses have been considered office overhead, and therefore, cannot be claimed as a [*2]disbursement. (In re Muhlemann, NYLJ, 03/13/1997, at 32 [Sur. Ct., Westchester County].)

Facsimile transmissions may be added to the list. The advancement of technology has enabled law firms to augment communication efficiency with the courts, clients, opposing counsel and third parties through the use of "fax" transmittals. Charges for facsimile transmissions are frequently a blend of long distance telephone charges and the cost of ink and paper. In that regard, facsimile charges are overhead and may not properly be considered disbursements.

The fax charges of $111.00 and postage expenses of $9.22 are disallowed. Disbursements in the sum of $812.96 are approved.

On this application, the Court considered the verified petition, affirmation in support, affidavit of legal services with one (1) exhibit, answering affidavit with one (1) exhibit, and stipulation.

Counsel for the preliminary executrix is directed to submit a decree on notice consistent with the foregoing within ten (10) days of service of a copy of this decision.

This constitutes the decision of the court.

Dated:Poughkeepsie, New York

March 9, 2007

ENTER

HON. JAMES D. PAGONES, S.C.J.

TO:

030507 decision&order

John C. Gifford, Esq.

Van DeWater & Van DeWater, LLP

P.O. Box 112

Poughkeepsie, New York 12602

Sara Jane Gulbrandsen

c/o Vincent L. Teahan, Esq.

Teahan & Constantino, Esqs.

41 Front Street, Suite A

P.O. Box 1181

Millbrook, New York 12545

Trinity United Methodist Church

8 South Cross Road

Lagrangeville, New York 12540

Angela Wildrick

153 Gold Road

Poughquag, New York 12570

Judy Beahan

29 Lakeview Road

Poughkeepsie, New York 12603

James Bracken

7 Valley View Drive

Keeseville, New York 12944

Demarest Methodist Church

109 Hardenburgh Avenue

Demarest, New Jersey 07627

Debbie Beattie

17 Beaver Road

Lagrangeville, New York 12540

Judy Sulsky

8 Prentiss Drive

Hopewell Junction, New York 12533

Sonja Romano

14607 Back Valley Road

Sale Creek, Tennessee 37373

Rita Bracken

19 Valley View Drive

Keeseville, New York 12944

George Basler

25 Fox Run Road

Madison, Connecticut 06443

Steven Basler

25 Fox Run Road

Madison, Connecticut 06443

Christine Basler

C/o Robert B. Dietz, Esq.

Dietz & Dietz, LLP

Two Cannon Street, Suite 207

Poughkeepsie, New York 12602

Michael Basler

25 Fox Run Road

Madison, Connecticut 06443

Jennifer Basler

25 Fox Run Road

Madison, Connecticut 06443

Amy C. Karp, Esq., Assistant Attorney General

New York State Department of Law

Charities Bureau

120 Broadway

New York, New York 10271