In re Tarlow

• Decision Date: 13 November 2013
• Citation: 2013 N.Y. Slip Op. 07491,975 N.Y.S.2d 109,111 A.D.3d 751
• Parties: In the Matter of Rachel TARLOW, deceased. Howard Rhine, petitioner; Theodore Tarlow, appellant; Charles Tarlow, objectant-respondent.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 751

975 N.Y.S.2d 109

2013 N.Y. Slip Op. 07491

In the Matter of Rachel TARLOW, deceased. Howard Rhine, petitioner; Theodore Tarlow, appellant; Charles Tarlow, objectant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 13, 2013.

Harry L. Klein, Brooklyn, N.Y., for appellant.

The Law Firm of Ravi Batra, P.C., New York, N.Y. (Todd B. Sherman of counsel), for objectant-respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In a probate proceeding in which the executor petitioned to settle an account of the decedent's estate, legatee Theodore Tarlow appeals, as limited by his brief, from so much of an order of the Surrogate's Court, Kings County (Johnson, S.), dated October 11, 2011, as, in effect, upon reargument, adhered to a determination in an order of the same court dated February 9, 2011, granting the objection of residuary legatee Charles Tarlow and thereupon vacating a provision in an order of the same court (Seddio, S.), dated May 10, 2007, awarding counsel fees to Harry L. Klein, the attorney for Theodore Tarlow in connection with related Mental Hygiene Law article 81 proceedings in which Charles Tarlow sought to have Theodore Tarlow declared an incapacitated person.

ORDERED that the order dated October 11, 2011, is affirmed insofar as appealed from, with costs.

In an order dated May 10, 2007 (hereinafter the 2007 order), the Surrogate's Court in this probate proceeding awarded counsel fees to Harry L. Klein for his representation of the decedent's legatee Theodore Tarlow (hereinafter Theodore) in two Mental Hygiene Law article 81 proceedings commenced by Theodore's brother Charles Tarlow (hereinafter Charles) in the Supreme Court, seeking to have Theodore declared an incapacitated person. The 2007 order authorized the executor of the decedent's estate to pay Klein's fees from the estate, of which Theodore was the primary beneficiary. Upon the executor's petition to settle his account, Charles, a residuary legatee of the decedent's estate, filed objections arguing, inter alia, that so much of the 2007 order as set Klein's fee was improper, as it exceeded the subject matter jurisdiction of the Surrogate's Court. In an order dated February 9, 2011 (hereinafter the February 2011 order), the Surrogate's Court granted this objection and vacated so much of the 2007 order as set Klein's fee. Theodore then moved, in effect, for leave to reargue. The Surrogate's Court granted reargument but, in effect, upon reargument, adhered to the determination in the February 2011 order. Theodore appeals.

“The Surrogate's Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends” ( Matter of Stortecky v. Mazzone, 85 N.Y.2d 518, 524, 626 N.Y.S.2d 733, 650 N.E.2d 391). Although the Surrogate's Court Procedure Act authorizes the court to fix and determine attorney's fees for services rendered to a beneficiary of an estate ( seeSCPA 2110[1] ), “[t]he only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent” (Matter of Lainez, 79 A.D.2d 78, 80, 435 N.Y.S.2d 798). Contrary to Theodore's contention, “the Surrogate's Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate” ( id.;see Matter of Piccione, 57 N.Y.2d 278, 290, 456 N.Y.S.2d 669, 442 N.E.2d 1180; Matter of Weinstock, 283 A.D.2d 510, 511, 724 N.Y.S.2d 868; see also Matter of...