Surrogate's Court, Rockland County, January 12, 2022

Martin William Goldman, New York City, for counterclaimants.

Abrams Garfield Margolis Bergson, LLP, New York City (Robert J. Bergson of counsel), and Walsh & Walsh, Esqs., Hackensack, New Jersey (John Walsh, Jr. of counsel), for petitioner.

Before the court is a motion by the Estate of Clifford Hart, Jake Hart, Alex Hart, and Naomi Hart (the counterclaimants) for partial summary judgment on the fee petition filed by Davidson, Sochor, Ragsdale & Cohen (petitioner) based on petitioner's failure to comply with the 22 NYCRR part 137 mandatory fee dispute resolution procedures. Counterclaimants seek dismissal of the fee petition and severance of their malpractice counterclaims. Petitioner opposes the motion for partial summary judgment and separately moves to strike the counterclaimants' answer with counterclaims as a sanction for failure to comply with discovery.

Decedent Clifford Hart passed away on November 14, 2014. Mr. Davidson, decedent's longtime attorney and drafter of decedent's will, and Mr. Davidson's firm, Davidson, Sochor, Ragsdale & Cohen, began performing work on behalf of the Estate on November 24, 2014. Mr. Davidson alleges that attorney{**74 Misc 3d at 878} Martin Goldman reached out to him on November 25, 2014, on behalf of Alex and Jake, decedent's sons (and Mr. Goldman's godsons). Mr. Davidson alleges that he and Mr. Goldman communicated frequently in December, January, and February about the Estate. On December 10, 2014, Gregory H. Cayne, Esq., a member of Davidson, Sochor, Ragsdale & Cohen, filed a petition as attorney for Jake Hart seeking letters of administration c.t.a. and seeking admission of decedent's last will and testament to probate. The will was admitted to probate by decree on January 28, 2015, and letters of administration c.t.a. issued to Jake Hart on the same date. Petitioner allegedly provided Jake with a retainer agreement for him to sign in his capacity as administrator, but Jake did not sign or return it. Allegedly, in late February, Mr. Davidson was informed by Mr. Goldman that he had instructed Jake not to pay the firm's invoices.

On June 1, 2015, the instant proceeding was initiated by petitioner seeking the fixing and determination of fees pursuant to SCPA 2110. Petitioner sought fees of $26,532.50 and disbursements of $984.50 for services rendered from November 14, 2014, through February 26, 2015. On October 26, 2015, the Estate, Jake Hart, Alex Hart, and Naomi Hart^[FN1] filed an answer with affirmative defenses and counterclaims of malpractice in response to the fee petition. The Estate and the three individuals are represented by Mr. Goldman.

On September 16, 2016, the Estate filed a motion for summary judgment in which it argued that the failure of petitioner to maintain an office in New York in violation of Judiciary Law § 470 disqualified petitioner from being compensated for the legal work done from November 2014 through February 2015. Counterclaimants also sought to have the malpractice counterclaim severed from the fee petition. This court denied both the motion for summary judgment and the motion to sever the counterclaim. (See Matter of Hart, 2017 NY Slip Op 33370[U] [Sur Ct, Rockland County 2017].) Counterclaimants moved to reargue, which [*2]motion was granted, but the court adhered to its original determination and declined to grant summary judgment in counterclaimants' favor or sever the counterclaim. (See Matter of Hart, Sur Ct, Rockland County, Aug. 28, 2017, file No. 2014-753/B.) Both decisions were appealed. Both decisions{**74 Misc 3d at 879} were affirmed. (See Matter of Hart, 194 AD3d 931 [2d Dept 2021].)

Counterclaimants now return with another attempt to dismiss the petition based on a different theory. Counterclaimants argue that as a matter of law they are entitled to dismissal of the fee petition because petitioner did not serve them with notice of their right to arbitrate a fee dispute per 22 NYCRR 137.6 (a) (1). In response, petitioner argues that SCPA 2110, "Compensation of attorneys," and the associated rule at 22 NYCRR 207.45 are the governing statutes for this petition, rather than the mandatory arbitration rule found at 22 NYCRR 137.0 et seq. Petitioner argues that this second summary judgment motion is improper, as successive summary judgment motions are disfavored. Petitioner also argues that this ground for dismissal cannot be considered because it was not alleged in the amended answer with counterclaims filed on April 26, 2016. Counterclaimants reply that this court lacks subject matter jurisdiction over the petition because the mandatory arbitration notice was never served.

Separately, petitioner seeks to renew its request to strike counterclaimants' amended answer with counterclaims. Petitioner argues that counterclaimants have failed to pay the sanction ordered by this court on August 3, 2021, and failed to comply with the discovery ordered in the May 5, 2021 decision. Petitioner seeks attorney's fees associated with bringing this application.

In response to the motion to renew, counterclaimants restate the substance of their summary judgment motion, primarily arguing that this court lacks jurisdiction over the controversy. Counterclaimants do not claim to have complied with the sanction order or the outstanding discovery order. Mr. Goldman "vigorously rejects" the accusation that he is guilty of contumacious misconduct. Counterclaimants raise a previously rejected argument that they need not comply with discovery because they did not approve of the organization of petitioner's document production. In reply, petitioner notes counterclaimants do not deny that they have not paid the sanction imposed by the court or produced documents or a privilege log as directed by this court. Petitioner argues that striking the answer with counterclaims is the only way for the court to maintain the integrity of the litigation process.{**74 Misc 3d at 880}

I. Motion for Summary Judgment for Failure to Comply with Part 137

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to eliminate any material issues of fact from the case. (See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957].) The movant bears the burden of proving entitlement to summary judgment, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985].) Once sufficient proof has been offered, the burden then shifts to the opposing party who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form that raises a triable issue of fact. (See Zuckerman v City of New York, 49 NY2d 557 [1980].)

Here, counterclaimants allege that petitioner failed to comply with the notice provisions of 22 NYCRR part 137, which divests the court of jurisdiction and requires dismissal of the fee [*3]petition. In the initial petition filed in this matter on December 10, 2014, the proposed engagement letter was attached as exhibit D to the attorney affirmation. The "Agreement to Provide Legal Services" does not include the required part 137 language. The answer with counterclaims does not specifically raise the failure to include part 137 language in the proposed engagement letter as an affirmative defense or objection. Instead, in the first objection and point of law, the counterclaimants allege that "Petitioner, admittedly a New Jersey law firm, is not authorized to practice law in New York State and failed to meet its responsibility to obtain from the Estate and/or administrator either a written retainer agreement and/or a letter of engagement as it was required to by NYCRR § 1215.1." (Amended verified answer, affirmative defenses, and respondents' counterclaims to petition ¶ 6.) The same issue is raised as the first affirmative defense. (See id. ¶ 7.) The second affirmative defense also cites the failure to obtain a letter of engagement in violation of 22 NYCRR 1215.1 and argues that petitioner may only recover (if at all) on the basis of quantum meruit. The answer does not raise the issue that is the focus of this motion, the failure to provide the notice required by 22 NYCRR 137.6 (a) (1).

Petitioner does not claim that the part 137 notice was sent. Instead, petitioner argues that the part 137 arbitration rules{**74 Misc 3d at 881} do not apply in this case because the Surrogate's Court Procedure Act provides an alternate process per SCPA 2110. Therefore, there is no dispute on the one fact issue raised by counterclaimants in the motion (whether the notice was sent), making it appropriate for a ruling on summary judgment.

A. History of SCPA 2110

Warren's Heaton on Surrogate's Court Practice reviews the history of the Surrogate's authority to fix attorney's fees. (See 8 Warren's Heaton, Surrogate's Court Practice § 106.01.) Prior to 1916, if a fiduciary disputed the fees charged by the estate's attorney, the attorney would bring an action at law against the fiduciary in their individual capacity. However, in Matter of Rabell (175 App Div 345 [2d Dept 1916]), the Appellate Division held that if a fiduciary refused to pay the full compensation of the attorney, the Surrogate's Court had jurisdiction to fix the amount of the fee and direct its payment from the estate in a special proceeding. In a subsequent matter, the New York County Surrogate's Court found that it had jurisdiction to determine the value of the services an attorney rendered to an estate and direct payment of fees out of the estate assets. (Matter of Shipman, 116 Misc 405 [Sur Ct, NY County 1921], affd 200 App Div 896 [1st Dept 1922], affd 234 NY 499 [1922].) In 1923, the legislature enacted former Surrogate's Court Act § 231-a (the predecessor to SCPA 2110), which embodied the procedure set forth in Rabell and Shipman.

SCPA 2110 authorizes the court to fix and determine the compensation of an attorney at any time during the administration of the estate. SCPA 2110 (2) directs that the proceeding shall be instituted by petition of, inter alia, an attorney who has rendered services to the estate. The Uniform Rules for Surrogate's Court require that an attorney file an affidavit of services in any proceeding to determine attorney's fees. (See 22 NYCRR 207.45 [a].) The court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. (See Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Vitole, 215 AD2d 765 [2d Dept 1995]; Matter of Verplanck, 151 AD2d 767, 767 [2d Dept 1989] [Surrogate "bears the ultimate responsibility to decide" the reasonableness of compensation for legal services rendered to an estate]; SCPA 2110 [3] [allowing court to [*4]direct attorney to refund fees in excess of fair value of services rendered].){**74 Misc 3d at 882}

This power of the Surrogate to set fees is superior to the parties' consent to a requested fee. (See Stortecky, 85 NY2d at 526 ["(T)he Surrogate had the authority to inquire into the reasonableness of counsel's fee even though agreed upon by the executor and assented to by the beneficiaries"].) The court is not bound by the terms of a retainer agreement. (See Matter of Williams, 168 AD3d 753, 753 [2d Dept 2019] ["the Surrogate bears the ultimate responsibility of deciding what constitutes a reasonable legal fee, regardless of the existence of a retainer agreement"]; Matter of Guattery, 278 AD2d 738 [3d Dept 2000] [absence of written retainer agreement did not prevent Surrogate from fixing attorney's fees]; Estate of Paula M. Venezia, 240 NYLJ 77, 2008 NY Misc LEXIS 6644 [Sur Ct, Kings County 2008], citing Matter of Schanzer, 7 AD2d 275 [1st Dept 1959].)

The Surrogate also has the jurisdiction to determine attorney malpractice issues in an SCPA 2110 proceeding to fix attorney's fees. (See Matter of Tarka, 293 AD2d 396, 396 [1st Dept 2002] ["The court's jurisdiction extended to . . . allegations of malpractice inasmuch as such claims allegedly arose in connection with the administration of the estate"]; Haskel & Lancaster, NYLJ, Jan. 5, 2001 at 2, col 6, 2001 NYLJ LEXIS 160 [Sur Ct, Nassau County 2001, Radigan, S.].)

B. History of 22 NYCRR Part 137

Effective March 4, 2002, the Codes, Rules and Regulations of the State of New York were amended to require attorneys to provide clients with a written letter of engagement. (See 22 NYCRR 1215.1.)^[FN2] The regulation instructs that the engagement letter address three topics: the scope of services to be provided; an explanation of the fees to be charged; and, "where applicable," a notification that the client may have a right to arbitrate fee disputes pursuant to 22 NYCRR part 137.^[FN3] Part 137 contains the regulations for the New York State Fee Dispute Resolution Program, which "provides for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation." (22 NYCRR{**74 Misc 3d at 883} 137.0.) To ensure that clients are aware of their right to arbitrate, 22 NYCRR 137.6 (a) (1) requires an attorney to forward a written notice to their client called "Notice of Client's Right to Arbitrate."

Certain matters are exempted from the part 137 rules. Included among the exemptions are "claims involving substantial legal questions, including professional malpractice or misconduct," and "disputes where the fee to be paid by the client has been determined pursuant to statute or rule . . . or where the fee has been determined pursuant to a court order." (22 NYCRR 137.1 [b] [3], [5].) Failure to provide the client with written notice of their right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that either the notice was served or that arbitration is inapplicable, has been held to require dismissal of the complaint. (See Zisholtz & Zisholtz, LLP v Mandel, 165 AD3d 1312 [2d Dept 2018]; Pascazi Law Offs., PLLC v Pioneer Natural Pools, Inc., 136 AD3d 878 [2d Dept 2016].) However, dismissal is without prejudice to refile after the proper service of the notice, should the offer of fee arbitration not be accepted by the client.

Incredibly, only three published cases have considered the interplay of SCPA 2110 and the part 137 rules. In Estate of Marie A. Henriques, the New York County Surrogate's Court dismissed without prejudice a fee petition filed by a law firm that had represented a respondent party, Antonio Henriques, because the estate and the firm agreed to pursue arbitration per part 137. (See NYLJ, Aug. 20, 2014 at 22, col 1, 2014 NYLJ LEXIS 2051 [Sur Ct, NY County 2014].) A second case found the part 137 rules inapplicable because the fees in dispute were over $50,000, and therefore exempt from the Fee Dispute Resolution Program. (See Estate of Clarke, NYLJ, July 15, 2004 at 21, col 3, 2004 NYLJ LEXIS 3128 [Sur Ct, Bronx County 2004].) Finally, in a Surrogate's Court case in New York County, the court denied a client's motion to compel arbitration of a fee dispute. (See Estate of Julia Elizabeth Taschereau, 2006 NY Misc LEXIS 6303 [Sur Ct, NY County, July 31, 2006].) The Taschereau decision noted that the attorney's retainer agreement referred to the option for arbitration per part 137 but did not have all of the required language. (See id. at *11.) However, the court also noted that arbitration would not be available because there were claims of malpractice. (See id. at*12.) Finally, the court dismissed the attorney's cross motion for determination of his fees because he had not brought the petition per SCPA 2110. (See Taschereau at *13.)

{**74 Misc 3d at 884}In a matter more akin to the one before this court, the Kings County Surrogate's Court rejected a respondent's argument that the petitioning law firm was required to submit to fee dispute arbitration prior to filing an SCPA 2110 application. (See Estate of Rose Mary McGushin, NYLJ, Apr. 1, 2013 at 23, col 4, 2013 NYLJ LEXIS 7294 [Sur Ct, Kings County 2013].) The court distinguished between a fee dispute and a "petition [that] is an application to determine the reasonableness of the petitioner's compensation," noting that the Surrogate's Court had both the authority and the obligation to determine legal fees. (2013 NYLJ LEXIS 7294, *7.) The opinion did not specifically mention the part 137 rules, but flatly rejected the argument that any type of mandated fee arbitration must precede filing of an SCPA 2110 petition.

Finally, the treatise most frequently cited on Surrogate's Court practice, Warren's Heaton, concludes that SCPA 2110 fee petitions should be exempt from part 137. (See 9 Warren's Heaton on Surrogate's Court Practice § 119.04 [8], Legal Fees Not Subject to Arbitration.) The treatise notes that enforcement of an arbitration award for legal fees performed on behalf of an estate would likely be referred to Surrogate's Court, where an independent inquiry into the reasonableness of the award would be conducted. The treatise concludes that it is "unlikely that the Surrogate's Court would defer to the arbitrator's award for legal fees." (Id., citing Matter of Raymond v Davis, 248 NY 67 [1928].)

C. Conclusion

[1] While this court certainly appreciates the benefits of alternative dispute resolution, and in fact, routinely orders matters to mediation per the 2020 Presumptive Mediation rules, this court must agree with the Kings County Surrogate's Court that failure to comply with the part 137 rules for arbitration of fee disputes does not require dismissal of an SCPA 2110 petition nor divest this court of subject matter jurisdiction over the petition. First, as that court pointed out, part 137 rules are aimed at "fee disputes" filed by complaint. A fee petition in Surrogate's [*5]Court is not necessarily a fee dispute at all. It is a petition for the setting of fees, which is frequently uncontested.

Second, section 2110 gives the Surrogate the obligation to ensure that fees charged to an estate are fair and reasonable, regardless of the fiduciary's consent to the fees. Given the Surrogate's obligation to supervise the fees paid by an estate to its attorneys, the requirement that the matter be sent to arbitration{**74 Misc 3d at 885} would directly conflict with the Surrogate's duty. In fact, there are a number of subjects where an arbitration agreement is not enforceable because arbitration would be improper delegation of the court's authority. (See Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621 [1968] [enforcement of NYS antitrust laws]; Bidermann Indus. Licensing v Avmar N.V., 173 AD2d 401 [1st Dept 1991] [disqualification of an attorney from representing a particular party]; Durst v Abrash, 22 AD2d 39 [1st Dept 1964], affd 17 NY2d 445 [1965] [usury claims asserted by borrowers]; Glauber v Glauber, 192 AD2d 94 [2d Dept 1993] [custody of and visitation with children].) Specifically within the field of trusts and estates, the probate of a will, distribution of the estate, appointment of an administrator, accounting proceedings generally, kinship proceedings, will construction, guardianships, and controversies relating to the conduct of a fiduciary are all areas where New York courts have held arbitration agreements unenforceable. (See 9 Warren's Heaton on Surrogate's Court Practice § 119.04 [1]-[7].)

Arbitration of a matter that ends in an unenforceable settlement does not serve the goals of a "more efficient, affordable and meaningful civil justice process" (Court System to Implement Presumptive, Early Alternative Dispute Resolution for Civil Cases, Unified Ct Sys Press Release, May 14, 2019). This court concludes that since it has the duty to review and approve fees even in the face of the consent of the parties, an arbitration agreement on fees would be similarly unenforceable. Therefore, a party cannot be penalized for failure to offer participation in an alternate dispute resolution process that would still require application to the Surrogate's Court for approval of fees.

Finally, the court finds that even if the part 137 rules did apply to Surrogate's Court fee petitions, counterclaimants cannot raise failure of the petitioner to comply with the part 137 rules at this late date in this matter. The purpose of part 137 is to provide an informal and expeditious resolution of disputes. This matter has been before the court for seven years. The fee dispute has already been to the Appellate Division and has been the basis for eight motions before this court. The failure to provide the part 137 notice was first raised in the last year. It was not mentioned in the answer or in the many, many prior motions. Dismissing the fee petition because the petitioner failed to serve a notice for optional arbitration, which would{**74 Misc 3d at 886} have been declined by the counterclaimants so that they could pursue their malpractice claims, and which would have resulted in an unenforceable agreement, if accepted, would be a waste of time, money, professional resources, and paper of almost epic proportions. In fact, the court suspects that this entire motion is an effort at wasting petitioner's time and money.^[FN4] Therefore, even if the part 137 rules applied, in the interest of justice, the court declines to dismiss this SCPA 2110 fee petition for failure to provide notice of the part 137 rules.

II. Motion to Renew Motion to Strike the Answer with Counterclaims

On a motion to renew per CPLR 2221 (e), a movant must present new facts and a valid excuse for failure to previously submit such facts. (See Halliday v Halliday, 218 AD2d 729 [2d Dept 1995].) Here, petitioner renews the motion because of the new fact that counterclaimants have again failed to comply with discovery deadlines. Petitioner also points out that the counterclaimants have failed to pay the sanction of $8,995.50 imposed by this court in its order of August 3, 2021.

Amazingly, counterclaimants do not deny either allegation. Instead, they argue that the court lacks jurisdiction to decide the matter, rehashing the arguments about part 137 made in their summary judgment motion. Counterclaimants have chosen a perilous litigation strategy.

As this court stated in pages 9-10 of the decision and order of May 5, 2021, when a party fails to comply with court-ordered discovery and frustrates the liberal disclosure rules of the CPLR, the court may strike a pleading as a sanction. (See CPLR 3126 [3]; Stone v Zinoukhova, 119 AD3d 928 [2d Dept 2014] [affirming striking of answer].) Before a court imposes "the drastic remedy of preclusion for disclosure violations, it must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious." (Tung Wa Ma v New York City Tr. Auth., 113 AD3d 839, 839 [2d Dept 2014] [reversing preclusion].)

In the decision and order of May 5, 2021, this court reviewed counterclaimants' years of noncompliance with petitioner's{**74 Misc 3d at 887} discovery demands and offered counterclaimants a final opportunity to respond. (See Matter of Hart, 2021 NY Slip Op 32977[U] [Sur Ct, Rockland County 2021].) The decision and order directed counterclaimants to turn over responsive documents and a privilege log within 14 days or face preclusion. (See id. at *11.) For reasons that are not known, counterclaimants did not comply and turned over no information to petitioner.

[2] "The willful and contumacious character of a party's conduct may be inferred from the party's repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time." (Hasan v 18-24 Luquer St. Realty, LLC, 144 AD3d 631, 632 [2d Dept 2016] [internal quotation marks omitted] [affirming decision striking pleadings].) Here, counterclaimants repeatedly failed to comply with court-ordered discovery, failed to provide any reasonable excuses for their noncompliance, and continued their noncompliance over an extended period of time. There is no reason to believe that counterclaimants will comply with discovery demands if given more time, and there is no reason to offer them any more time.

When a party refuses to obey an order for disclosure or willfully fails to disclose information which the court had ordered disclosed, the court may make such orders as are just. (See JNG Constr., Ltd. v Roussopoulos, 170 AD3d 1136 [2d Dept 2019] [affirming preclusion and entering default judgment].) Given counterclaimants' willful and contumacious failure to comply with court-ordered discovery, this court is left with no option but to strike counterclaimants' answer with counterclaims. Further, as this court has repeated in the past,

"CPLR § 3126 permits imposition of a monetary sanction, including costs and counsel fees, for failure to properly engage in discovery. See Maxim, Inc. v. Feifer, 161 AD3d 551 (1st Dept. 2018); Lucas v. Stam, 147 AD3d 921 (2d Dept. 2017); Matter of Rogers (Bell), 2021 NY Slip Op. 50329(U) (Surr. Ct. Orange Co. 2021) (imposing $3500 as a sanction)." (Matter of Hart, 2021 NY Slip Op 32977[U],*12 [Sur Ct, Rockland County 2021].)

Fees are awarded as a sanction to petitioner's counsel for the cost of bringing the motion to renew, and such sanction [*7]shall be payable personally by counterclaimants Jake Hart and Alex{**74 Misc 3d at 888} Hart, and their godfather/attorney Martin Goldman. And so, the perilous litigation strategy met its doom.

III. Unopposed Petition for Attorney's Fees

Having struck the answer and counterclaims, the fee petition is now unopposed. Petitioner seeks $26,532.50 in fees based on 74.30 hours of work and $984.50 in disbursements. Per the contemporaneously prepared bills, Mr. Davidson performed 15.9 hours of the work, which he billed at $475/hour. An associate attorney, Gregory Cayne, performed the other 58.4 hours, which were billed at $325/hour.

As discussed at length, supra, the determination of the reasonableness of attorney's fees is within the sound discretion of the Surrogate. (See Stortecky, 85 NY2d 518.) The factors to be taken into account in the fixing of fees, known as the "Potts/Freeman" requirements, include the time expended by the attorney, the size of the estate, the billing practices in the community, the difficulties involved in the matter, the skill required, the attorney's experience, ability and reputation, the responsibilities involved, and the benefit resulting to the estate from the services rendered. (See Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925].)

The Surrogate is obligated to limit attorney's fees to reasonable amounts. (See Matter of Cook, 41 AD2d 907 [1st Dept 1973], affd 33 NY2d 919 [1973].) In addition to being reasonable, the legal services must be necessary. An attorney cannot be compensated from an estate for performance of routine executorial tasks, i.e., work that could have been done by a layperson. (See Matter of Leffler [Schwartz], 222 AD2d 332 [1st Dept 1995]; Matter of Passuello, 184 AD2d 108 [3d Dept 1992]; Matter of Jones, 168 AD2d 448 [2d Dept 1990]; Matter of Iacovangelo [Mok], 72 Misc 3d 918, 933 [Sur Ct, Monroe County 2021] [reducing legal fee from $32,070 to $12,732.50 based on finding that much of the time billed was "for calls to the financial institutions that held the decedent's assets; for correspondence with the same institutions; for setting up an estate account and receiving signature cards; and for correspondence with decedent's family"].)

[3] Based on the affirmation of legal services and itemized contemporaneous time records provided by petitioner, the court finds that a significant amount of the work performed by petitioner was executorial in nature rather than legal. All of the time spent calling and emailing various financial institutions{**74 Misc 3d at 889} to marshal assets, obtaining taxpayer identification numbers, organizing decedent's papers, corresponding with NJ Bonding, corresponding with doctors, and filing claims were properly the responsibility of the fiduciary, and should have been performed by the administrator c.t.a. or the successor trustee of the Clifford J. Hart Revocable Trust.^[FN5]

When a fiduciary delegates to an attorney tasks that are the fiduciary's responsibility, the court may surcharge the fiduciary's commissions in the amount of the attorney's fees for such tasks. (See Matter of Shen, 157 AD2d 731 [2d Dept 1990] [affirming order of Surrogate's Court directing executor to pay part of attorney's fees from his statutory commission because "a [*8]substantial portion of the services performed by the attorney were executorial in nature"].) Here, the fiduciary has not filed his account or petitioned for settlement, so it is not clear how much he is owed in commissions (if anything). Therefore, the court cannot order that commissions be used to pay for attorney time spent on executorial matters on this record.

Of the 15.9 hours billed by Mr. Davidson, the court finds that 2.4 hours were executorial, leaving 13.5 hours and a total approved fee for him of $6,412.50. Of the 58.4 hours attributed to Mr. Cayne, the court finds that 33.4 of the hours were executorial. Therefore, this court sets and approves the fees of Mr. Cayne based on 25 hours of legal work for a total of $8,125. Together, the court approves a legal fee for petitioner of $14,537.50.

Petitioner seeks repayment for disbursements of $984.50. Of that, $869 are described as "admin fees." Unfortunately, that description is not sufficient for the court to determine if the fees are properly charged to the Estate. The filing fee for the administration petition was $625. It is not clear what the other $244 covers, so that expense must be disallowed. An additional filing fee of $30 is approved as a charge to the Estate. The expenses for FedEx, which totaled $85.50, are disallowed, as such expenses constitute office overhead and are expected to be absorbed by counsel. (See e.g. Matter of Marsh, NYLJ, July 14, 2015 at 26 [Sur Ct, Westchester County 2015] [specifically disallowing expenses for travel, mailing, telephone, photocopies, and faxes]; Matter of Muhlemann, NYLJ, Mar. 13, 1997 at{**74 Misc 3d at 890} 6, col 3 [Sur Ct, Westchester County 1997].) The total approved disbursements are $655.

The time has come for this matter to be closed. The construction of the will has been fully litigated. (See Matter of Hart [Brown], 194 AD3d 933 [2d Dept 2021].) A decree settling most of the issues has been signed. The only work left to be completed is for petitioner's counsel to submit an affirmation of legal services with contemporaneously prepared time entries so that this court may set the second sanction and for the fiduciary to petition to settle the estate account. Therefore, it is ordered that the motion by counterclaimants for summary judgment in their favor is denied; and it is further ordered that the motion to renew is granted; and it is further ordered that the motion to strike the answer with counterclaims for failure to comply with discovery is granted; and it further ordered that the request per CPLR 3126 for petitioner's fees and costs for bringing the motion to renew is granted; and it further ordered that petitioner's attorney Mr. Bergson shall file an affirmation of legal services (with contemporaneously prepared time entries) for the time spent preparing this motion and its reply so that the court may impose the sanction which shall be personally payable by counterclaimants Jake Hart and Alex Hart and their attorney Martin Goldman; and it is further ordered that the petition for fees is granted, and the legal fees of Davidson, Sochor, Ragsdale & Cohen are set at $14,537.50 in fees and $655 in disbursements, which amounts shall be a charge against the Estate of Clifford Hart; and it is further ordered that the administrator c.t.a. shall file his account and petition for judicial settlement within 30 days of the date of this decision and order.