| Matter of Talbot |
| 2011 NY Slip Op 04059 [84 AD3d 967] |
| May 10, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jo D. Talbot, Deceased. Karen Cullin, Appellant;James Spiess, Respondent. |
—[*1] Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Anthony C. Pasca of counsel), forrespondent.
In a probate proceeding in which Karen Cullin petitioned to fix and determine an attorney'sfee pursuant to SCPA 2110, Karen Cullin appeals from an order of the Surrogate's Court, SuffolkCounty (Czygier, S.), dated March 17, 2010, which denied her petition to fix and determine thefee of her former attorney and granted her former attorney's cross motion for summary judgmentdismissing the petition.
Ordered that the order is reversed, on the law, with costs, the petition to fix and determinethe fee of the petitioner's former attorney is granted, and the cross motion for summary judgmentdismissing the petition is denied.
The petitioner retained attorney James Spiess to represent her in a contested probateproceeding. Spiess agreed to represent the petitioner on a contingent fee basis pursuant to awritten retainer agreement. About four weeks later, the probate proceeding was settled pursuantto a settlement agreement placed on the record in open court. Spiess received a $5,000 retainerand a $585,000 contingency fee for his services pursuant to the terms of the retainer agreement.
The petitioner sought to fix and determine Spiess's fee pursuant to SCPA 2110, and Spiesscross-moved for summary judgment dismissing the petition. The Surrogate's Court denied thepetition and granted the cross motion.
The determination of what constitutes a reasonable attorney's fee is a matter within the sounddiscretion of the Surrogate's Court, which is in the best position to assess and consider thenecessary factors in fixing and determining an attorney's fee (see Matter of Piterniak, 38 AD3d 780, 781 [2007]; Matter of Szkambara, 53 AD3d502, 502 [2008]; Nicastro v Park, 186 AD2d 805, 805 [1992]). "In evaluating whatconstitutes a reasonable attorney's fee, factors to be considered include the time and laborexpended, the difficulty of the questions involved and the required skill to handle the problemspresented, the attorney's experience, ability, and reputation, the amount involved, the customaryfee charged for such services, and the results obtained" (Matter of Szkambara, 53 AD3dat 502-503; see Matter of Freeman, 34 NY2d 1, 9 [1974]).
In a proceeding pursuant to SCPA 2110 to fix and determine an attorney's fee, the [*2]Surrogate bears the ultimate responsibility of deciding whatconstitutes a reasonable legal fee, regardless of the existence of a retainer agreement or whetherall of the interested parties have consented to the amount of fees requested (see Matter ofPiterniak, 38 AD3d at 781; Matter of Szkambara, 53 AD3d at 502; Nicastro vPark, 186 AD2d at 805; Matter of Gluck, 279 AD2d 575, 576 [2001]). "Althoughcontingent fee retainer agreements are not per se improper in matters involving theadministration of estates . . . agreements entered into between an attorney and hisclient, as a matter of public policy, are of special concern to courts" (Matter of Lanyi, 147AD2d 644, 647 [1989]; see Matter ofThompson, 66 AD3d 1035, 1036 [2009]; Matter of Krulish, 130 AD2d 959, 959[1987]). The burden of proving that the retainer agreement was reasonable rests with the attorney(see Matter of Thompson, 66 AD3d at 1036; Matter of Lanyi, 147 AD2d at 647;Matter of Krulish, 130 AD2d at 959; see also Matter of Gasco, 27 AD2d 557,558 [1966]; Matter of Schanzer, 7 AD2d 275, 277 [1959], affd 8 NY2d 972[1960]).
In this case, although the Surrogate's Court properly considered whether the contingency feeretainer agreement was fraudulently or otherwise wrongfully procured, it nevertheless erred whenit granted Spiess's cross motion for summary judgment without determining the reasonablenessof his fee under the retainer agreement or otherwise fixing and determining his fee (seeMatter of Krulish, 130 AD2d at 959; cf. Matter of Thompson, 66 AD3d at 1036;Matter of Lanyi, 147 AD2d at 647). Accordingly, the petition to fix and determine the feeshould have been granted, the cross motion should have been denied, and the Surrogate's Courtshould fix and determine Spiess's fee after consideration of the relevant factors (see Matter ofSzkambara, 53 AD3d at 502), and an evaluation of the reasonableness of the retaineragreement (see Matter of Gasco, 27 AD2d at 558).
This Court expresses no opinion as to the reasonableness of the retainer agreement. Skelos,J.P., Leventhal, Sgroi and Miller, JJ., concur.