| Matter of Theodore T. (Charles T.) |
| 2010 NY Slip Op 08583 [78 AD3d 955] |
| November 16, 2010 |
| Appellate Division, Second Department |
| In the Matter of Theodore T., Respondent; Charles T., Appellant.Rene Myatt et al., Nonparty Respondents. |
—[*1] Harry L. Klein, Brooklyn, N.Y. (Louis A. Badolato of counsel), for respondent.
In a proceeding pursuant to article 81 of the Mental Hygiene Law for the temporaryappointment of a guardian for the personal needs and property management of Theodore T., analleged incapacitated person, the petitioner appeals from an order and judgment (one paper) ofthe Supreme Court, Kings County (Lewis, J.), entered July 15, 2008, which granted TheodoreT.'s motion to dismiss the petition for lack of personal jurisdiction, dismissed the petition, andawarded compensation in the sums of $6,755 to the court-appointed evaluator and $13,417.25 tothe court-appointed counsel, to be paid by the petitioner.
Ordered that the order and judgment is modified, on the law and in the exercise of discretion,by deleting the provisions thereof awarding compensation in the sums of $6,755 to thecourt-appointed evaluator and $13,417.25 to the court-appointed counsel, to be paid by thepetitioner; as so modified, the order and judgment is affirmed, with costs payable by thepetitioner, and the matter is remitted to the Supreme Court, Kings County, for a newdetermination as to the amounts of those awards, setting forth the reasons therefor and the factors considered.
On April 2, 2008, the petitioner, Charles T., filed a petition for the temporary appointment ofa guardian for the personal needs and property management of his brother, Theodore T., analleged incapacitated person, pursuant to article 81 of the Mental Hygiene Law. In theaccompanying order to show cause, the Supreme Court directed that the order, notice of petition,and verified petition be served on Theodore T. by personal service, or by leaving them withsomeone at his residence and mailing the order. The papers were delivered to Theodore T. byFedEx Express on April 7, 2008.
Theodore T. moved to dismiss the petition on the ground that the Supreme Court lackedpersonal jurisdiction over him, arguing that Charles T. failed to comply with the terms for properservice of process described in the order to show cause. The Supreme Court granted TheodoreT.'s motion, and dismissed the petition for lack of personal jurisdiction. The Supreme Court alsoawarded compensation in the sums of $6,755 to the court-appointed evaluator and $13,417.25 tothe court-appointed counsel for [*2]Theodore T., to be paid byCharles T. The Supreme Court did not include an explanation for these awards. Charles T.appeals.
The petitioner bears the ultimate burden of establishing that the court has personaljurisdiction over the respondent (see Frankel v Schilling, 149 AD2d 657, 659 [1989])."The method of service provided for in an order to show cause is jurisdictional in nature andmust be strictly complied with" (Matterof Hennessey v DiCarlo, 21 AD3d 505, 505 [2005]). Here, the mode of service utilizedby the petitioner—overnight delivery by FedEx Express—was not in strictcompliance with the order to show cause, and the Supreme Court properly determined that it waswithout jurisdiction to entertain the proceeding (see Matter of Stern v Garfinkle, 22 AD3d 694 [2005]; Matter of New York Cent. Mut. Fire Ins.Co. v Czumaj, 9 AD3d 833, 834 [2004]).
The Supreme Court has broad discretion in determining the reasonable amount to award asan attorney's fee in a guardianship proceeding (see Ricciuti v Lombardi, 256 AD2d 892[1998]). However, it must provide a clear and concise explanation for its award in a writtendecision with reference to the following factors: (1) the time and labor required, the difficulty ofthe questions involved, and the skill required to handle the problems presented, (2) the attorney'sexperience, ability, and reputation, (3) the amount involved and the benefit flowing to the wardas a result of the attorney's services, (4) the fees awarded in similar cases, (5) the contingency orcertainty of compensation, (6) the results obtained, and (7) the responsibility involved (seeMatter of Freeman, 34 NY2d 1 [1974]; Ricciuti v Lombardi, 256 AD2d at 893;Matter of Stark, 174 AD2d 746 [1991]).
Here, the Supreme Court failed to explain the factors it considered and its reasoning for thefees awarded to the court-appointed counsel for Theodore T. The Supreme Court committed thesame error in awarding compensation to the court-appointed evaluator (see Matter of Nebrich, 23 AD3d1018 [2005]). Accordingly, we remit the matter to the Supreme Court, Kings County, for anew determination as to the amounts of those awards, setting forth the reasons therefor and thefactors considered (see Matter of AudreyJ.S., 34 AD3d 820, 820-821 [2006]; Matter of Nebrich, 23 AD3d at 1019 Matter of Martha O.J., 22 AD3d756, 757 [2005]). Dillon, J.P., Florio, Roman and Sgroi, JJ., concur.
Motion by Theodore T. to dismiss an appeal from an order and judgment (one paper) of theSupreme Court, Kings County, entered July 15, 2008, or to strike stated portions of theappellant's brief, and to direct the appellant to serve and file a supplemental record. By decisionand order on motion of this Court dated November 17, 2009, that branch of the motion whichwas to strike the portion of the appellant's brief beginning on page 40 with the words "Notice ofSettlement was not served" and ending on page 42 with the words "notwithstanding that thenotice to Charles was deficient on its face (R77.1)" was held in abeyance and referred to theJustices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and[*3]upon the argument of the appeal, it is
Ordered that the branch of the motion which was to strike the above-referenced portion of theappellant's brief is granted, and that portion of the appellant's brief is stricken and has not beenconsidered in the determination of the appeal. Dillon, J.P., Florio, Roman and Sgroi, JJ., concur.