In this accounting proceeding, the administratrix moves pursuant to CPLR 3216 for an order dismissing the objectant's objections and supplemental objections with counterclaims for his failure to prosecute the issues raised in his pleadings and file a note of issue. The objectant, pro se, contends that his disabilities prevent him from proceeding with this litigation for at least one year and that the court should appoint a pro bono attorney for him.

The decedent died on October 18, 1991, survived by six children. The acrimonious litigation between the administratrix, the decedent's daughter, and the objectant, the decedent's son, before this and other courts has prolonged the administration of the estate. Most of the litigation flowed from the administratrix's ultimately successful efforts in evicting the objectant from real property where he resided and worked and then selling the decedent's interest in the realty (see DiNapoli v DiNapoli, 1995 WL 555740,1995 US Dist LEXIS 13522 [SDNY Sept. 19, 1995]; Matter of DiNapoli, 210 AD2d 42 [1994], lv denied 85 NY2d 804 [1995]; Matter of DiNapoli, NYLJ, May 8, 1996, at 30, col 3; Matter of DiNapoli, NYLJ, Feb. 22, 1994, at 30, col 4). In those prior proceedings, the objectant either appeared pro se or was represented by various counsel. When the counsel who represented the objectant pro bono sought to be relieved, the objectant contended that the pro bono representation was inadequate and that the law firm should be permitted to withdraw provided that it agree to pay for the services of another counsel of his choice (Matter of DiNapoli, NYLJ, May 8, 1996, supra).

Following the sale of the Bronx realty, the administratrix filed an account on August 5, 1996 for the period from October 18, 1991 to June 6, 1996, indicating that the gross value of the estate was $103,536.10, and the net value, after deducting the paid funeral and administration expenses listed on Schedule C, was $60,761.95. The administratrix seeks reimbursement of unpaid administration expenses totaling $13,109.15 and labor costs of $7,800, allegedly incurred in preparing the realty for sale. On Schedule G, the administratrix seeks to charge certain of the costs, legal fees and expenses of prior litigation against the objectant's one-sixth distributive share. The administratrix amended the account to add that she also sought to recover the sum of $10,200 from the objectant [*2]for his occupancy of the real property from October 18, 1991 through April 1994, at the rate of $400 per month.

In objections filed on January 24, 1997 and supplemental objections filed on September 16, 1997, the objectant disputes virtually every aspect of the account, as amended, alleging, inter alia, that: (1) the decedent owned a 100% interest in the real property (the account reflects that the decedent had a 60% interest and her daughter, Marie, owned a 40% interest); (2) the real and personal property belonging to the estate were sold at below market value; (3) monies were improperly withdrawn from two bank accounts; (4) the account fails to include all payments he made for use and occupancy of the Bronx property; (5) in any event, he was improperly charged for his use and occupancy as any such obligation was offset by his payment of utilities; (6) the administratrix failed to charge Marie for her use and occupancy of the Bronx realty, as Marie has no interest in that realty; (7) he was never reimbursed for his partial payment of the decedent's funeral expenses; (8) legal fees, disbursements and other items are not properly chargeable to the estate; (9) the closing costs and expenses of sale were actually only about half of what is now sought; and, (10) the administratrix was previously directed to pay the first two months' storage fees for his personal property upon his eviction and her failure to do so resulted in the storage company's improper retention of his property.

The objectant's six counterclaims seek: (1) the sum of $2,619.70 for his partial payment of the decedent's funeral expenses; (2) the sum of $41,100 for his maintenance of the Bronx real property; (3) all legal fees he expended to date; (4) the sum of $22,500 on a judgment which is not annexed, allegedly issued against his sister by the Civil Court, Bronx County, on August 13, 1996, including costs and interest from that date; and, (5) damages of $75,000 for lost earnings and devalued personal property, based upon the administratrix' failure to pay two months of storage fees, causing a forced sale of his personal property.

On June 2, 1997, this court directed that any party could place the matter on the ready for trial calendar upon compliance with Uniform Rules for Surrogate's Court (22 NYCRR) §§ 207.29 and 207.30 (Matter of DiNapoli, NYLJ, June 2, 1997, at 29, col 4). The attorney who represented the objectant in the accounting proceeding moved to be relieved as counsel on the grounds that he had been subjected to a verbal assault ("threats" and "accusations") "the likes of which (he has) never heard to date." The objectant took the position that the attorney's compensation should be limited to his $260 in disbursements, that the objectant should recover damages for the attorney's representation of him and that the court should appoint another attorney for him. The court ruled as follows: (1) the motion to withdraw was granted; (2) a $260 lien against the objectant's interest in this estate was granted in favor of the attorney; (3) the sum of $5,810 was directed to be withheld from the objectant's share of the estate to cover possible counsel fees due, pending the further order of the court; and (4) the objectant's request for the appointment of new counsel was denied on the ground that there was no statutory mandate requiring the court to appoint pro bono counsel for him and "considering that objectant is seeking to recover damages for alleged malpractice from both attorneys who have previously represented him, one who did so on a pro bono basis and the other on a contingency basis, the court would be reluctant to direct an attorney to represent objectant unless both objectant and counsel freely and voluntarily consented to the arrangement" (Matter of [*3]DiNapoli, NYLJ, Dec. 3, 1997, at 31, col 2).A pre-trial conference with the court was held on December 15, 1999. To date, neither the administratrix nor the objectant has filed a note of issue, certificate of readiness or statement of issues.

As a predicate to the instant motion, on August 9, 2006, the administratrix served on the objectant, by certified mail, return receipt requested, a 90-day demand pursuant to CPLR 3216. After more than the 90-day period had expired, the administratrix moved to dismiss all objections for neglect to prosecute, asserting, inter alia, that all conditions precedent to dismissal under CPLR 3216 were satisfied.

In an 11-page opposition with exhibits, the now pro se objectant contends, inter alia, that: (1) his ignorance of the law, financial circumstances and well-documented disabilities prevent him from answering the motion or proceeding with his objections; and (2) because the administratrix failed to pay two months of storage fees, he no longer has access to his legal papers.

The objectant's request for the appointment of pro bono counsel shall be addressed first. Although the objectant has medical issues and suffers from physical disabilities, he has failed to establish that he is not able to represent himself or to retain counsel. The objectant apparently represented himself in an action in which he obtained a judgment in excess of $20,000 against his sister. It also appears that this judgment has not been satisfied and, if the objectant so desired, he could use those funds to retain counsel. Consequently, considering that it appears that the objectant is capable of obtaining funds to retain counsel and that on at least two occasions he has alleged legal malpractice and sought to recover damages from counsel who represented him, it would not be appropriate for the court to exercise its discretion under CPLR 1102(a) to assign counsel for him. Moreover, the objectant does not fall within the class of persons who are entitled to have a guardian ad litem appointed under SCPA 403(2). Specifically, the objectant has not demonstrated that he "is incapable adequately to protect his ... rights" (SCPA 103 [25]) or that he is "an incompetent" (SCPA 103 [40][b]). Accordingly, the objectant's request for the appointment of pro bono counsel or a guardian ad litem is denied.Pursuant to CPLR 3216(a), where a party unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss that party's pleading. No dismissal pursuant to CPLR 3216 may be directed unless certain conditions precedent have been met; namely, that: (1) issue has been joined; (2) one year has elapsed since the joinder of issue; and, (3) the party seeking such relief has served, by registered or certified mail, a 90-day written demand containing certain information (see CPLR 3216[b], [1], [2], [3]). Where the 90-day demand is properly served and not timely complied with, the court may grant the motion unless the party served with the demand shows both a justifiable excuse for the delay and a good and meritorious cause of action (CPLR 3216[e]; cf. Grant v City of New York, 17 AD3d 215 [2005]). Thus, even where noncompliance with the 90-day demand occurs, CPLR 3216 is "extremely forgiving of litigation delay" (see DiSimone v Good Samaritan Hosp., 100 NY2d 632, 633 [2003]). As the SCPA does not provide for another procedure, the provisions of CPLR 3216 apply in this proceeding (SCPA 102; see also Matter of Maggio, NYLJ, Feb. 14, 2001 at 33, col 2; Matter of Tredwell, NYLJ, July 13, 2000, at 31, col 2; Matter of Lancaster, NYLJ, June 23, 1998, at 35, col 2).

The administratrix has established that the objectant was properly served with the [*4]90-day demand, that all other conditions precedent to dismissal under CPLR 3216 were met, and that the objectant failed to timely file a note of issue within the requisite time frame. In response to the motion, the objectant annexed a document demonstrating that his legal papers in storage were, in fact, available to him, thereby undermining his alleged justification for the delay. Similarly, in response to the motion, the objectant failed to annex any copies of checks, deeds or other items which would support his claims of the decedent's 100% ownership interest in the Bronx real property, the decedent's ownership of a condominium, his payment of a portion of the decedent's funeral expenses, or his payment of utilities, maintenance and use and occupancy. Thus, in addition to failing to offer any justifiable excuse, the objectant failed to demonstrate that his counterclaims and objections are meritorious. Moreover, the court cannot overlook that the final account, as amended, was filed in 1996 and the objections, supplemental objections and counterclaims were filed in 1997, some 10 years ago. Although the objectant contends that he needs at least one more year before he will be ready to proceed, there is no reason to believe that the objectant will be better able to proceed with this litigation in one year than he is at present. It is also noted that although the objectant is the objecting party in the accounting proceeding, his pleadings, both the objections and the counterclaims, seek affirmative relief against the administratrix in both her individual and fiduciary capacities. Two examples are his pleadings with respect to the civil court judgment that he allegedly obtained and his allegations that the estate had a 100% interest in the real property. To the extent that the objectant may be deemed to be in the same posture as a petitioner, his pleadings may be dismissed pursuant to SCPA 209(8), which provides that the court has the power "to dismiss any proceeding which the petitioner has neglected to prosecute diligently."

Accordingly, the administratrix' motion to dismiss the objections, supplemental objections and all counterclaims for want of prosecution is granted. Inasmuch as the dismissal of the objections will result in the judicial settlement of the account, the dismissal is with prejudice as to all subjects embraced in the account as judicially settled. To the extent that the objections or counterclaims seek relief against the administratrix, individually, based on a judgment obtained against her or for acts not performed while acting as fiduciary of this estate, the dismissal is without prejudice.

Although the administratrix may now proceed to have a decree judicially settling her account entered, she is not entitled to all of the relief she requested. In the absence of statutory authorization, New York common law requires all litigants to pay their own counsel fees regardless of the outcome of the litigation (Matter of Green [Potter], 51 NY2d 627, 629-30 [1980], citing City of Buffalo v Clement Co., 28 NY2d 241, 262; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22). Consequently, the administratrix cannot charge the counsel fees incurred by the estate in the litigation with the objectant against his intestate share of the estate (Matter of Dillon, 28 NY2d 597, 599 [1971]; Matter of Urbach, 252 AD2d 318, 321 [1999]). Furthermore, to some extent the administratrix may be charged with a failure to diligently prosecute this proceeding. To date she has not submitted any proof to establish that she and her siblings are entitled to be reimbursed for the expenditures or labor in connection with the real property set forth in Schedule C-1 of the account. Therefore, all of the C-1 items are disallowed. Similarly, because the administratrix has failed to diligently prosecute either her Schedule D-5 personal claims for reimbursement or the claim to recover from the objectant for his use and occupancy of the [*5]real property, these claims are disallowed.

The administratrix shall update her account. In the event that counsel for the administratrix is presently seeking additional legal fees, the request should be supported by an affidavit of legal services setting forth all services rendered as attorney for the administratrix. In accordance with the directions of the decree entered on December 24, 1997, the decree to be entered hereon shall provide that the fiduciary will withhold the sum of $5,810 from the objectant's share of the estate, in an interest bearing account, for a period of 30 days after the entry of the final decree so that Jeffrey A. Feinbloom, Esq., has the opportunity to assert his claim for legal fees for representing the objectant in this proceeding. Although that decree also provided that the objectant was to notify Mr. Feinbloom, the court hereby modifies that aspect of the decree by directing that the decree to be entered hereon shall be settled upon both the objectant and Mr. Feinbloom and shall contain a provision that if Mr. Feinbloom does not notify the administratrix and the court in writing within 30 days after the entry of the final accounting decree that he is pursuing his claim for legal services, the administratrix shall expeditiously pay the sum withheld to the objectant.

The administratrix shall serve a copy of this decision, which also constitutes the order of the court with respect to Mr. Fleinbloom's claim, upon both the objectant and Mr. Feinbloom, and shall settle a decree incorporating the determinations herein and judicially settling her account.

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SURROGATE