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

140
CA 09-02075
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF ROBERT SILLS AND AUDREY
ELAINE SILLS, AS CO-EXECUTORS OF THE ESTATE
OF ANGELINE V. SILLS, DECEASED,
PETITIONERS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

FLEET NATIONAL BANK, JOAN ROYSTON AND
KIRK RICHARDSON, RESPONDENTS-RESPONDENTS.
-------------------------------------------
AUDREY PATRONE PEARTREE, GUARDIAN AD LITEM,
RESPONDENT.
-------------------------------------------
ROBERT SILLS AND AUDREY ELAINE SILLS, AS
CO-EXECUTORS OF THE ESTATE OF ANGELINE V.
SILLS, DECEASED, PLAINTIFFS-APPELLANTS,

                    V

FLEET BANK AND JOAN ROYSTON,
DEFENDANTS-RESPONDENTS.
-------------------------------------------
AUDREY PATRONE PEARTREE, GUARDIAN AD LITEM,
RESPONDENT.
-------------------------------------------
ROBERT SILLS AND AUDREY ELAINE SILLS, AS
CO-EXECUTORS OF THE ESTATE OF ANGELINE V.
SILLS, DECEASED, PLAINTIFFS-APPELLANTS,

                    V

JOAN ROYSTON, DEFENDANT-RESPONDENT.
-------------------------------------------
AUDREY PATRONE PEARTREE, GUARDIAN AD LITEM,
RESPONDENT.
(APPEAL NO. 1.)


GATES & ADAMS, P.C., ROCHESTER (MICHAEL STEINBERG OF COUNSEL), FOR
PETITIONERS-APPELLANTS AND PLAINTIFFS-APPELLANTS.

MCDONOUGH & ARTZ, P.C., BINGHAMTON (PHILIP J. ARTZ OF COUNSEL), FOR
RESPONDENT-RESPONDENT AND DEFENDANT-RESPONDENT JOAN ROYSTON.

THE WOLFORD LAW FIRM LLP, ROCHESTER (ELIZABETH A. WOLFORD OF COUNSEL),
FOR RESPONDENT.
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                                                         CA 09-02075

UNDERBERG & KESSLER LLP, ROCHESTER (PAUL V. NUNES OF COUNSEL), FOR
RESPONDENT-RESPONDENT FLEET NATIONAL BANK AND DEFENDANT-RESPONDENT
FLEET BANK.


     Appeal from an order of the Supreme Court, Steuben County (Peter
C. Bradstreet, A.J.), entered February 13, 2009. The order denied
petitioners’ demand for the return of an escrow account of $173,804.33
plus accrued interest held by respondent Fleet National Bank and
awarded guardian ad litem fees to respondent guardian ad litem.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the award of guardian ad
litem fees to respondent guardian ad litem and as modified the order
is affirmed without costs and the matter is remitted to Supreme Court,
Steuben County, for further proceedings in accordance with the
following Memorandum: Addressing first the orders in appeal Nos. 1,
and 3 through 5, petitioners contend that Supreme Court erred in
granting the fee awards, including attorney’s fees and costs incurred
on appeal, to respondent guardian ad litem (hereafter, respondent),
who served in that capacity for petitioners’ decedent prior to her
death. We agree with petitioners that the order in appeal No. 1 must
be modified by vacating the award of guardian ad litem fees and that
the orders in appeal Nos. 3 through 5 that, inter alia, awarded
respondent attorney’s fees must be vacated. Decedent had died before
those orders were issued, and it is undisputed that a duly appointed
personal representative had not been substituted as a party for
decedent when those orders were entered. We therefore modify the
order in appeal No. 1 accordingly, and we vacate the orders in appeal
Nos. 3 through 5. We further note that the appeal from the order in
appeal No. 2 must be dismissed because it necessarily was superseded
by the order in appeal No. 3.

     With respect to that part of the order in appeal No. 1 awarding
respondent guardian ad litem fees, and the orders in appeal Nos. 3
through 5 that, inter alia, awarded respondent attorney’s fees
incurred on appeal, “[i]t is well settled that the death of a party
divests a court of jurisdiction to conduct proceedings in an action
until a proper substitution has been made pursuant to CPLR 1015 (a) .
. ., and any order rendered after the death of a party and before the
substitution of a legal representative is void” (Griffin v Manning, 36
AD3d 530, 532). Only “under ‘special circumstances,’ such as where
there has been active participation in the litigation by the personal
representative who would have been substituted for the decedent” is
the rule waived (id.), and that was not the case here. We reject the
contention of respondent that petitioners waived any jurisdictional
objection by actively participating in the fee applications (cf.
Fitzpatrick v Palazzo, 46 AD3d 1414). Indeed, the record establishes
that, six days after decedent died, petitioners’ attorney sent a
letter to the court stating, inter alia, that decedent’s death
divested the court of jurisdiction to rule upon respondent’s initial
fee application, which was filed approximately one month before
decedent died. The only other action taken by petitioners was the
participation of their attorney in a conference with the court
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                                                         CA 09-02075

regarding the first fee application. Following the conference, the
court granted that application, and the court also granted
respondent’s second fee application, filed in April 2006. We conclude
that the limited actions undertaken by petitioners’ counsel did not
rise to the level of active participation required to warrant the
conclusion that petitioners waived the jurisdictional objection, as
contended by respondent.

     We note that, although Surrogate’s Court had issued an order
granting temporary letters of administration to petitioner Audrey
Elaine Sills, such order conferred upon her only the power to appear
in this Court with respect to an appeal that had been filed by
petitioners in a related action. The order expressly provided that
“said Letters shall not confer upon said fiduciary any other power or
authority including the authority to collect assets or commence new
litigation on behalf of the estate, without prior permission of the
Court . . . .” Thus, it cannot be said that the order authorized
Audrey Sills to act as a representative of the estate with respect to
any of respondent’s fee applications, and there is no evidence in the
record before us to support respondent’s contention that the parties
and the court interpreted and treated the order as having granted
Audrey Sills such authority.

     We conclude with respect to the orders in appeal Nos. 3 through 5
that respondent is not entitled to legal fees or other compensation
for costs incurred in defending the fee awards on appeal. A guardian
ad litem is entitled to compensation for the time and effort expended
in meeting opposition to a fee award only to the extent that the
opposition is unreasonable (see Matter of Infant X. v Children’s Hosp.
of Buffalo, 197 AD2d 884, 885). Given our conclusion that the court
lacked jurisdiction to entertain the fee applications, it cannot be
said that petitioners’ opposition to those applications was
unreasonable. We thus conclude that the fees awarded to respondent
must be vacated, and the matter remitted for a hearing at which
petitioners may challenge respondent’s fee applications.

     Finally, with respect to petitioners’ claims against Fleet
National Bank (Fleet), we reject the contention of petitioners that
the funds currently held in escrow should be returned to the estate.
Rather, as the court noted in the order in appeal No. 1, such funds
shall continue to be held in escrow pending the resolution of Fleet’s
application for attorney’s fees.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
