               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

501
CA 11-01602
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF THE INTERIM ACCOUNTING OF
LAMISE KADAH CARANO, AS EXECUTOR, AND THE
FINAL ACCOUNTING OF WARREN W. BADER, PUBLIC
ADMINISTRATOR, AS ADMINISTRATOR C.T.A. OF THE
ESTATE OF ANN M. KADAH, ALSO KNOWN AS ANN KADAH,
DECEASED.                                                 MEMORANDUM AND ORDER
------------------------------------------------
LAMISE KADAH CARANO, PETITIONER-APPELLANT;

RONALD B. KADAH, OBJECTANT-RESPONDENT.


WHITTEMORE LAW FIRM, RENO, NEVADA (F. HARVEY WHITTEMORE, OF THE NEVADA
BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND GILBERTI STINZIANO HEINTZ
& SMITH, P.C., SYRACUSE, FOR PETITIONER-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (RICHARD L. WEBER OF COUNSEL),
FOR OBJECTANT-RESPONDENT.


     Appeal from an order of the Surrogate’s Court, Onondaga County
(John J. Elliott, S.), entered April 12, 2011. The order, inter alia,
granted the motion of objectant for summary judgment on various
objections made with respect to petitioner’s intermediate accountings,
imposed surcharges on petitioner, and ordered petitioner to reimburse
objectant $35,000 for counsel fees.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying objectant’s motion for
summary judgment with respect to objections 13, 14, 15, 17, 18, 26,
30, 31, and 32 and supplemental objections 5, 14, 15, 16, 29 and 39,
and vacating the sixth ordering paragraph, and as modified the order
is affirmed without costs.

     Memorandum: Petitioner, the former executor of decedent’s
estate, appeals from an order that, inter alia, granted the motion of
objectant for summary judgment on various objections made with respect
to petitioner’s intermediate accountings, surcharged petitioner based
on those objections, ordered petitioner to reimburse objectant $35,000
for counsel fees incurred by him, and imposed statutory interest on
the surcharges. At the outset, we reject petitioner’s request to take
judicial notice of the documents attached as an appendix to her
appellate brief. Although those documents are from prior proceedings
relating to this estate, they were not submitted to Surrogate’s Court
in connection with the order on appeal (see 22 NYCRR 1000.4 [a] [2]),
nor are they part of the stipulated record on appeal (see 22 NYCRR
1000.4 [a] [1]).
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                                                         CA 11-01602

     As limited by her brief, petitioner contends that the Surrogate
erred in granting objectant’s motion for summary judgment with respect
to specified objections and supplemental objections. We reject
petitioner’s contention that the Surrogate erred in ordering her to
pay objectant $35,000 for counsel fees incurred by him. We otherwise
agree with petitioner’s contentions on appeal, however, and we
therefore modify the order accordingly.

     “The proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law, tendering
sufficient evidence to eliminate any material issues of fact from the
case . . . [, and the f]ailure to make such showing requires denial of
the motion, regardless of the sufficiency of the opposing papers”
(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). With respect
to that part of objectant’s motion asserting that petitioner incurred
excess counsel fees in the amount of $72,994.28, we conclude that
objectant failed to meet his initial burden of establishing that any
of those fees were excessive or otherwise unwarranted. In support of
the motion, objectant merely listed the total legal fees paid or
expected to be paid to each law firm that provided services in this
estate proceeding, including those fees incurred or expected to be
incurred after petitioner was replaced as executor. Objectant then
summarily suggested a lower total amount for such fees, and requested
that all fees in excess of that amount be surcharged to petitioner.
We conclude that objectant thereby failed to establish his entitlement
to judgment on his objections and supplemental objections asserting
that petitioner had incurred excessive legal fees, i.e., objections 13
through 15 and 30 through 32, as well as supplemental objections 14
through 16 and 39.

     We further agree with petitioner that the Surrogate erred in
granting objectant’s motion with respect to objection 26 and
supplemental objection 29 and surcharging petitioner for estate tax
penalties and interest incurred by the estate arising from the late
filing of estate tax returns and the late payment of estate taxes.
While objectant met his initial burden with respect thereto,
petitioner raised an issue of fact by, inter alia, presenting evidence
that she relied on the advice of counsel with respect to estate tax
matters and that objectant refused to consent to a business plan
intended to reduce the estate’s tax liability (see generally Zuckerman
v City of New York, 49 NY2d 557, 562).

     Petitioner also raised an issue of fact whether certain paintings
at Daedalus Drive in Cicero are the property of the estate, and thus
the Surrogate erred in granting objectant’s motion with respect to
supplemental objection 5, concluding instead that those paintings are
the property of a specified corporation. In addition, the Surrogate
erred in granting objectant’s motion with respect to objections 17 and
18, inasmuch as petitioner raised an issue of fact whether the
expenses for a printer and office supplies that she incurred while she
served as executor were warranted.

     Finally, although we reject petitioner’s contention that the
Surrogate imposed a double penalty by ordering her to pay a portion of
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                                                         CA 11-01602

the counsel fees incurred by objectant in the fifth ordering
paragraph, we agree with her that the Surrogate’s award of statutory
interest on the surcharges constituted an unfair penalty (see Matter
of Acker, 128 AD2d 867, 867-868). We therefore vacate the sixth
ordering paragraph.




Entered:   June 15, 2012                       Frances E. Cafarell
                                               Clerk of the Court
