| Matter of Dessauer |
| 2012 NY Slip Op 04862 [96 AD3d 1560] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of the Estate of Katherine M. Dessauer, Deceased.Antonia Greenlee et al., Respondents, v Thomas Dessauer, Individually and as Executorof Katherine M. Dessauer, Deceased, Appellant. |
—[*1] Bond, Schoeneck & King, PLLC, Syracuse (Richard L. Weber of counsel), forpetitioners-respondents.
Appeal from a decree of the Surrogate's Court, Monroe County (Edmund A. Calvaruso, S.),entered November 3, 2010. The decree, among other things, ordered respondent to pay theattorneys' fees and disbursements incurred by petitioners in commencing this proceeding.
It is hereby ordered that the decree so appealed from is unanimously modified on the law byreducing the award of attorneys' fees and disbursements in the sum of $6,048.77 to $3,071.27 andas modified the decree is affirmed without costs.
Memorandum: Respondent, individually and as executor of the estate of Katherine M.Dessauer (decedent), appeals from a decree that ordered him to pay attorneys' fees anddisbursements incurred by petitioners in commencing this proceeding to compel production ofdecedent's will pursuant to SCPA 1401. Respondent contends for the first time on appeal thatpetitioners lacked standing to commence the proceeding, and that contention therefore is notproperly before us (see Matter of Jared, 225 AD2d 1049 [1996]; see generally Matter of Grawe, 32AD3d 1309, 1310 [2006]). We further conclude, however, that Surrogate's Courtabused its discretion in determining that petitioners are entitled to attorneys' fees in the amount of$5,955 for legal services rendered in instituting this proceeding. We reject the contention ofpetitioners that respondent failed to contend either that the award of attorneys' fees was an abuseof discretion or that the amount of the award was unreasonable (cf. Oakes v Patel, 87 AD3d 816,819 [2011]). " 'In evaluating what constitutes a reasonable attorney's fee, factors to be consideredinclude the time and labor expended, the difficulty of the questions involved and the requiredskill to handle the problems presented, the attorney's experience, ability, and reputation, theamount involved, the customary fee charged for such services, and the results obtained' " (Matter of Talbot, 84 AD3d 967,967-968 [2011]; see Pelc v Berg, 68AD3d 1672, 1673 [2009]). Applying those factors here, we conclude that petitioners areentitled to the sum of $2,977.50 for legal services rendered in instituting this [*2]proceeding, together with the sum of $93.77 that was awarded fordisbursements with respect to the petition, and we thus modify the decree accordingly.Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.