In re O'Leary, 2015-4628

CourtNew York Surrogate Court
Writing for the CourtNora S. Anderson, Judge
Citation2022 NY Slip Op 31690 (U)
PartiesProceeding for Judicial Settlement of the Account of Frances O'Leary, as Executor of the Estate of MARY O'LEARY, Deceased.
Decision Date31 May 2022
Docket Number2015-4628

2022 NY Slip Op 31690(U)

Proceeding for Judicial Settlement of the Account of Frances O'Leary, as Executor of the Estate of MARY O'LEARY, Deceased.

No. 2015-4628

Surrogate's Court, New York County

May 31, 2022

Unpublished Opinion

Nora S. Anderson, Judge

In this contested accounting proceeding in the estate of Mary O'Leary, objectant Elena O'Leary moves for summary judgment on her objections to the executor's account.


Decedent died on October 4, 2013, survived by five adult children. Her will, which was admitted to probate in Bronx County, appointed her daughter, a lawyer (herein, "petitioner"), as executor of her estate. Petitioner commenced the instant proceeding in the Bronx County Surrogate's Court for judicial settlement of her account, in which she valued the estate at approximately $230, 000. One of decedent's other daughters, a residuary beneficiary (herein "objectant" or "movant"), filed two objections to the account. In the first, she objects to petitioner's legal fees and, in the second, she alleges that petitioner failed to account for the proceeds amounting to $15, 453 from decedent's life insurance policy as an estate asset. The accounting proceeding was subsequently transferred to this court and thereafter, objectant moved for summary judgment on both objections. Petitioner opposes the motion.

Legal Standard on a Motion for Summary Judgment

The premise of a summary judgment motion is that the movant's position is supported by the record as a matter of law (F. Garofalo Elec. Co. v New York Univ., 300 A.D.2d 186, 188 [1st Dept 2002]). Since a summary ruling against a party's position eliminates that party's recourse


to a trial, such relief is to be regarded as a "drastic measure" and should be granted only cautiously (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]; F. Garofalo Elec. Co. v New York Univ., 300 A.D.2d at 188). The movant has the threshold burden of submitting admissible evidence establishing a prima facie case (Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). If the movant satisfies such burden, it then falls to the party opposing summary judgment to demonstrate a genuine issue of material fact requiring trial (id.). When adjudicating such motions, the court's function is not to resolve issues of fact, but merely to determine whether such issues exist (Sillman v Twentieth Century-Fox Film Corp., supra).

Objection to Legal Fees

In her petition for judicial settlement of her account, petitioner seeks legal fees for legal services she purports to have provided the estate while acting as counsel to herself as the estate's fiduciary. In her affidavit of legal services, petitioner states that her fees between October 2013 and March 2015 totalled $2, 000, representing 21 hours at approximately $100 per hour. Petitioner subsequently submitted a second affidavit in which she claims entitlement to additional legal fees for (i) the five hours she spent preparing her motion to dismiss the objections, a motion which was ultimately denied by this court, and (ii) the five hours she spent preparing a supplemental account and "a proposed order for distribution" of the remaining estate assets. She also seeks reimbursement of $2, 275 she had paid to a lawyer, as well as reimbursement for disbursements associated with the filing of her motion to dismiss.

Movant objects to petitioner's request for any legal fees whatsoever, arguing that since petitioner also receives executorial commissions, her claim for legal fees...

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