U.S. Bank Trust Nat'l v. Sultana

• Court: New York Supreme Court
• Writing for the Court: SALVATORE J. MODICA, J.
• Citation: U.S. Bank Trust Nat'l v. Sultana, 57 N.Y.S.3d 677(Table) (N.Y. Sup. Ct. 2017)
• Decision Date: 02 May 2017
• Docket Number: No. 10792/2008.,10792/2008.
• Parties: U.S. BANK TRUST NATIONAL, et al., Plaintiff, v. Sheikhzadi SULTANA, et al., Defendants.

57 N.Y.S.3d 677 (Table)

U.S. BANK TRUST NATIONAL, et al., Plaintiff,

v.Sheikhzadi SULTANA, et al., Defendants.

No. 10792/2008.

Supreme Court, Queens County, New York.

May 2, 2017.

Rosicki, Rosicki & Associates, P.C., by Melissa S. Kubit, Esq., Plainview, for Plaintiff.

Alan Kestenbaum, Esq., Bayside, for the Guardian Ad Litem.

SALVATORE J. MODICA, J.

Papers Numbered
Motion	1–5
Opposition	6–9

The motion is by Alan C. Kestenbaum, Esq., who served as a guardian ad litem in this mortgage foreclosure action, as appointed by now retired Justice Phyllis O. Flug, by order dated August 26, 2008. According to a document filed by the Clerk on November 14, 2013, the action was discontinued and the notice of pendency cancelled when the defendant borrower paid the mortgage loan. No referee or receiver was ever appointed.

Mr. Kestenbaum seeks payment based on hourly rates totaling $3,150, and additional disbursements of $45, representing the fee for the instant motion. He states that his usual fee is $450 per hour and that he worked 9 hours on this matter, reducing his fee to $350.00 per judicial appointments. He caused certain documents to be filed. He does not state, in his supporting affirmation seeking the Court to fix his fee, whether he personally prepared the documents, such as the Guardian's Consent and Qualifying Affirmation, Report of Guardian Ad Litem, and the Answer of the Guardian Ad Litem and Military Attorney. All those documents were signed by Mr. Kestenbaum and the date handwritten presumably by him, of October 20, 2008. In fact, from paragraph 20 of Ms. Kubit's affirmation, it is clear that those documents were prepared for Mr. Kestenbaum, and not drafted by him. It is indeed the Court's experience that the plaintiff-lender's counsel usually prepares the reports for the court-appointed fiduciaries.

Rosicki, Rosicki & Associates, P.C., a law firm respected for representing lenders in mortgage foreclosure cases, objects to the fee sought by Mr. Kestenbaum. Ms. Kubit, for the firm, states that the standard fee is $500 for a referee and $250 for a guardian ad litem. Actually, courts have adjusted such fees, and it is the experience of the undersigned to award $750 to a referee and a flat fee of $500 for a guardian ad litem.

Indeed, courts, in foreclosure actions, typically award lender's attorneys a flat fee of $3,500 for their efforts. A referee, who performs a lot of work, gets, at most, $750, and is given only $500 by other judges, as Ms. Kubit observes. By that yardstick, Ms. Kubit is entirely correct that Mr. Kestenbaum's demand is excessive and over-the-top.

The work of guardians ad litem in mortgage foreclosure cases serves an important function, especially where a party cannot be found. The guardian ad litem "has a...