Estate of Dicosimo, In re

Decision Date18 March 1999
Parties, 1999 N.Y. Slip Op. 99,145 In the Matter of the ESTATE OF Rose DICOSIMO, Deceased. Surrogate's Court, Bronx County
CourtNew York Surrogate Court

Loeb & Loeb L.L.P. (Christine D. Carbone and Charles H. Miller of counsel), movant pro se.

Sanford B. Glatzer & Associates (Sanford B. Glatzer of counsel), for Jean Paliotta, administratrix.

LEE L. HOLZMAN, J.

In this accounting proceeding, the objectant, Loeb & Loeb, LLP, moves pursuant to CPLR 3211(a)(2) to dismiss that portion of the petition which requests that the court order the objectant to refund to the estate that portion of the previously paid legal fee that the court now determines to be in excess of a reasonable fee. The objectant contends that the court lacks subject matter jurisdiction over the controversy inasmuch as it involves a dispute between living persons, itself and the decedent's son Michael. The objectant argues that this is the case because Michael, who is not the fiduciary of the estate, retained the objectant and paid for the legal services from his own funds.

There is no dispute with regard to most of the facts. Although Michael had no plan to be appointed the administrator of the estate, he retained the objectant to perform legal services with regard to a dispute that existed between the decedent's son Anthony and the decedent's other children, including himself. A substantial portion of the legal services were rendered in a proceeding instituted by the administratrix of the estate in the Housing Part of the Civil Court of the City of New York to evict Anthony from real property that had been owned by the decedent. When Michael retained the objectant he was told that, due to the fact that the objectant had been rendering legal services on his behalf in corporate matters since 1989, the objectant would waive its usual requirement that a retainer fee be paid before any services were rendered and that he would be billed periodically for the objectant's hourly charges. Thereafter, 11 invoices for the legal services performed from January 1994 to July 1995 were periodically submitted to Michael. He paid each of the invoices, totaling $25,810, from his own funds. The largest single invoice that he paid was the penultimate one, dated July 20, 1995, for $6,548.17. The last invoice, dated August 18, 1995, was for $1,432.82.

The estate has reimbursed Michael for the legal fees that he paid to the objectant and contends that the fees paid were excessive. Although Michael does not allege that he ever advised the objectant that he was to be reimbursed by the estate for the legal fees that he was paying, the administratrix of the estate and Michael both assert that it should have been obvious to the objectant that the estate was ultimately going to reimburse Michael for these services. They argue that this is the case because the objectant's time charges reflect many conversations with the administratrix and because the objectant instituted proceedings on behalf of the administratrix, including the petition for letters of administration and the eviction proceeding.

The Surrogate's Court is a specialized court of limited jurisdiction, dealing primarily with proceedings relating to the affairs of decedents [N.Y. Const., Art. VI, § 12(d); Matter of Obregon, 91 N.Y.2d 591, 673 N.Y.S.2d 972, 696 N.E.2d 984]. However, if the proceeding falls within its area of specialization, the court has broad jurisdiction to resolve all of the issues raised (Matter of Piccione, 57 N.Y.2d 278, 456 N.Y.S.2d 669, 442 N.E.2d 1180; SCPA 209). Thus, the court has the power to determine the value of legal services rendered on behalf of the estate and to direct counsel to refund any portion of the fee that is found to...

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5 cases
  • Goodman v. Goodman
    • United States
    • U.S. District Court — Western District of New York
    • May 29, 2002
    ...to resolve the rights of decedents, has jurisdiction to hear this claim. See N.Y. Const., Art 6, § 12(d); In re Estate of Dicosimo, 180 Misc.2d 89, 687 N.Y.S.2d 592, 593 (N.Y.Sur.1999) ("if the proceeding falls within its area of specialization, the [Surrogate's Court] has broad jurisdictio......
  • Lawrence v. Miller
    • United States
    • New York Supreme Court — Appellate Division
    • November 27, 2007
    ...of deciding what constitutes reasonable legal fees, regardless of existence of a retainer agreement]; compare Matter of Dicosimo, 180 Misc 2d 89, 92 [Sur Ct 1999] [where retainer agreement was between objectant and the beneficiary, individually, and invoices were submitted directly to the b......
  • In re Estate of Ross
    • United States
    • New York Surrogate Court
    • May 6, 2019
    ...Court has broad authority in law and in equity to resolve all of the issues raised within the proceeding. In re Estate of Dicosimo , 180 Misc 2d 89 (Sup Ct 1999) . Under its general equitable powers, the Surrogate's Court "may directly grant any relief it could grant incidental to another s......
  • In re Xenos
    • United States
    • New York Surrogate Court
    • March 17, 2022
    ...property, the petition is denied entertainment (see e.g. , Estate of Lainez , 79 AD2d 78 [2d Dept 1981] aff'd 55 NY2d 657 ; Estate of Dicosimo , 180 Misc 2d 89 [Sur Ct., Bronx County 1999] ). The parties may seek redress by way of the partition action that is pending in the Supreme Court.Th......
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