In the Matter of the Estate of Nicholas Marsh, Also Known as Nicholas V. Marsh, Deceased. Adrienne M. Lefkowitz, Appellant; Claudia M. Appelbaum et al., Respondents, et al., Respondent. Schulte, Roth & Zabel, et al., Respondents.

2148

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

265 A.D.2d 253; 697 N.Y.S.2d 25; 1999 N.Y. App. Div. LEXIS 10860

October 26, 1999, Decided  
October 26, 1999, Entered

CASE SUMMARY

PROCEDURAL POSTURE: Petitioner appealed the decree of the Surrogate's Court, New York County (New York), which, on objectant's motion, confirmed a referee report in part and rejected it in part, fixed fees for applicants, and settled and allowed petitioner's account as preliminary executrix, as adjusted pursuant to certain objections, with related relief.

OVERVIEW: The challenged awards of attorney fees were proper exercises of the lower court's unquestionably broad discretion to fix such fees. The services for which the fees were awarded were related to exposing petitioner's misconduct, which has previously been noted by the court. The court did not agree with petitioner that the proceedings were affected by judicial bias, nor did the court find any defect in the referee's services. The bulk of petitioner's arguments on appeal were factual, and the court declined to disturb the referee's findings of fact, accepted by the lower court, since those findings and the conclusions drawn therefrom rested upon a fair interpretation of the evidence. The court considered petitioner's remaining arguments and found them unavailing.

OUTCOME: Decree affirmed; challenged awards of attorney fees were proper exercises of the lower court's unquestionably broad discretion. The bulk of petitioner's arguments on appeal were factual, and the court declined to disturb the referee's findings of fact, since those findings and conclusions rested upon a fair interpretation of the evidence.

COUNSEL: [***1]  Adrienne Marsh Lefkowitz, Petitioner-Appellant, Pro Se.

For Respondents-Respondents: Arthur M. Neiss, S. Timothy Ball.

For Objectant-Respondent: Robert M. Redis.

For Fee Petitioners-Respondents: Arthur M. Neiss.

JUDGES: Concur--Sullivan, J. P., Tom, Rubin, Saxe and Buckley, JJ.

OPINION: [*253] [**26]  Decree, Surrogate's Court, New York County (Eve Preminger, S.), entered April 27, 1998, which, on objectant's motion, inter alia, confirmed a Referee's report in part and rejected it in part, fixed legal fees for the law firm of Greene & Zinner, P. C. in principal amount of $ 174,000, fixed fees for the firm of Shea & Gould in the principal amount of $ 76,000, and settled and allowed petitioner's account as preliminary executrix, as adjusted pursuant to certain objections, with related relief, unanimously affirmed, with costs.

[*254]

The challenged awards of attorney fees were proper exercises of the Surrogate's "unquestionably broad discretion" to fix such fees (Matter of Urbach, 252 AD2d 318, 322). The services for which the fees were awarded were related to exposing petitioner's misconduct (see, Matter of Birnbaum v Birnbaum, 157 AD2d 177, 191),  [***2]  which has previously been noted by this Court (see, Matter of Marsh, 173 AD2d 336, appeal dismissed 78 NY2d 990). We do not agree with petitioner that the proceedings were affected by judicial bias (cf., Schrager v New York Univ., 227 AD2d 189), nor do we find any defect in the Referee's services. The bulk of petitioner's arguments on appeal are factual, and we decline to disturb the Referee's findings of fact, accepted by the Surrogate, since those findings and the conclusions drawn therefrom rest upon a fair interpretation of the evidence (cf., Matter of Clines, 226 AD2d 269, lv dismissed 88 NY2d 1016). We have considered petitioner's remaining arguments and find them unavailing.

Concur--Sullivan, J. P., Tom, Rubin, Saxe and Buckley, JJ.