[*1]
Matter of Bird v Melley
2013 NY Slip Op 51012(U) [40 Misc 3d 1203(A)]
Decided on June 27, 2013
Sur Ct, Dutchess County
Pagones, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 27, 2013
Sur Ct, Dutchess County


In the Matter of the Petition of Mari Bird and SHELLY PRESTON, Petitioners,

against

Phoebe Melley, Individually and as Executrix of the Estate of ROBERT S. KIRWOOD, and STEVEN M. MELLEY, Individually and as de facto Fiduciary of the Estate of ROBERT S. KIRWOOD, Respondents. Relative to the Administration of the Estate of ROBERT S. KIRWOOD, Deceased.




2009-97816/E



HON. C. RAYMOND RADIGAN

Referee

RUSKIN, MOSCOU & FALTISCHEK, P.C.

1425 EAB Plaza

East Tower, 15th Floor

Uniondale, New York 11556-1425

RICHARD M. MAHON, ESQ.

TARSHIS, CATANIA, LIBERTH,

MAHON & MILLIGRAM, PLLC

Attorneys for Petitioners

MARY BIRD, SHELLEY PRESTON and

ROBERT FOSTER KIRWOOD

One Corwin Court

P.O. Box 1479

Newburgh, New York 12550

CHARLES T. SCOTT, ESQ. GREENFIELD, STEIN & SENIOR, LLP

Attorneys for Respondent

PHOEBE MELLEY, Individually and

as Administratrix of the Estate of

ROBERT S. KIRWOOD

600 Third Avenue

New York, New York 10016

HERMAN H. TIETJEN, ESQ.

Attorney for Respondent

STEVEN M. MELLEY, ESQ.

60 East Market Street

P.O. Box 201

Rhinebeck, New York 12572-0201

DAVID GODOSKY, ESQ.

GODOSKY & GENTILE, P.C.

Co-Attorney for Respondent

STEVEN M. MELLEY, ESQ.

61 Broadway, Suite 2010

New York, New York 10006

James D. Pagones, J.



This motion by Phoebe Melley ("Phoebe") for an order

resettling the order of this Court, dated and entered October 5, 2012, is granted.

The record indicates that, on June 1, 2011, this Court appointed the Honorable C. Raymond Radigan to serve as referee to hear and report his findings of fact and conclusions of law pursuant to SCPA §506(1). The order of reference directed petitioners Mari Bird ("Mari") and Shelly Preston ("Shelly"), collectively, to remit the sum of $2,500.00 and respondents Phoebe and Steven M. Melley ("Steven"), collectively, to remit the sum of $2,500.00, for a total of $5,000.00 to the referee as security for his fee. The order then provides:

"A final determination as to the amount of fees and the party or parties who will bear the responsibility of paying the referee's fees and expenses shall abide a subsequent order of this court."

The parties appeared before the referee on June 21, 2012 for the purpose of placing a plenary settlement on the record. During the course of placing the parties' agreement on the record, counsel for Steven stated:

"With respect to the appointment of the referee, Your Honor, it is stipulated and agreed that any and all fees with respect to the referee will be paid by the parties in accordance with the order of Surrogate Pagones, which set forth a percentage, I [*2]believe of 50-25-25 respectively between the petitioners and the respondents." (Transcript at 9).

Counsel for Mari and Shelly then stated:

"And another point is with respect to payment of all the referee's fees, certainly, whatever the judge...whatever Judge Pagones has ordered, it will be allocated in accordance with that order." (Transcript at 11).

Thereafter, the Court signed an order, dated October 5, 2012. The referee's compensation was fixed at $18,886.85, and the estate was directed to pay the entire amount. This motion followed. Phoebe urges that the order inadvertently deviated from the parties' understanding at the time they settled the matter by directing the estate to pay the entire fee. Counsel for Steven has advised the court via correspondence that his client does not oppose the relief requested by Phoebe. Mari and Shelly have submitted their opposition. They contend that there was no unintentional oversight when this court made its final determination in accordance with its earlier order of reference, and on that basis, there should be no allocation of the referee's fees.

A motion for resettlement is a procedural device by which errors may be corrected or clarification is achieved. (In Re Beatrice T., 286 AD2d 686, 687 [2d Dept. 2001]; Washington v. Fuchs, 243 AD2d 707 [2d Dept. 1997]; Ansonia Associates v. Ansonia Tenants Coalition, 171 AD2d 411, 412 [1st Dept. 1991].) The order of reference perspicuously provided a formula by which the parties would be responsible for paying the referee's fee, subject to further order of the court. The formula was reaffirmed on June 21, 2012 when the parties appeared to place their full settlement on the record. There was no indication or request at that time that the court deviate from its initial division of financial responsibility with respect to the referee's fee. Under the circumstances, the October 5, 2012 order unintentionally diverges from the order of reference directive. The motion to resettle, therefore, is the appropriate procedural vehicle to correct this inadvertent oversight as to conform to the parties' stipulation and the underlying order of reference. (Matter of Beatrice T., supra; Washington v. Fuchs, supra.)

The second decretal paragraph of the October 5, 2012 order is modified as follows:

"ORDERED that the balance due of $18,886.85 be paid to the Referee as follows: $9,443.43 shall be paid collectively by Mari Bird and Shelly Preston, $4,721.71 shall be paid by Phoebe Melley and $4,721.71 shall be paid by Steven M. Melley, within ten (10) days of service of a copy of this order."

On this application, the Court considered the notice of motion supported by an affidavit with two (2) exhibits, answering [*3]affirmation with four (4) exhibits, and reply affidavit with one (1) exhibit.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

June 27, 2013



ENTER

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



062713 decision & order