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

43
CA 11-01621
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF THE JUDICIAL SETTLEMENT OF
FINAL ACCOUNT OF MANUFACTURERS AND TRADERS
TRUST COMPANY (AS SUCCESSOR TO CENTRAL TRUST
COMPANY), PETITIONER-RESPONDENT, AS THE                   MEMORANDUM AND ORDER
TRUSTEE OF THE TRUST UNDER ARTICLES THIRD AND
FOURTH OF THE LAST WILL AND TESTAMENT OF
EVELYN B. MULVEY, DECEASED, FOR THE BENEFIT OF
MARY HULL, ALSO DECEASED.
-----------------------------------------------
EUGENE P. LABUE, GUARDIAN AD LITEM FOR DAVID A.
LAWSON, RESPONDENT;

RICHARD I. MULVEY, APPELLANT.


RICHARD I. MULVEY, APPELLANT PRO SE.

EUGENE P. LABUE, ROCHESTER, RESPONDENT PRO SE.


     Appeal from a decree of the Surrogate’s Court, Monroe County
(Edmund A. Calvaruso, S.), entered March 21, 2011. The decree,
insofar as appealed from, awarded compensation to Eugene P. LaBue,
guardian ad litem for David A. Lawson.

     It is hereby ORDERED that the decree insofar as appealed from is
unanimously reversed on the law without costs, the award of fees to
respondent Eugene P. LaBue, guardian ad litem for David A. Lawson, is
vacated and the matter is remitted to Surrogate’s Court, Monroe
County, for further proceedings in accordance with the following
Memorandum: Richard I. Mulvey, appearing pro se, appeals from that
part of the decree that awarded compensation to Eugene P. LaBue
(respondent), guardian ad litem for David A. Lawson. Petitioner, as
trustee of a trust created by decedent Evelyn B. Mulvey, commenced
this proceeding for judicial settlement of account after the death of
the trust beneficiary. Respondent represented a potential remainder
beneficiary and advocated for a specific interpretation of the trust,
which was ultimately rejected by Surrogate’s Court. Following the
accounting, the Surrogate determined that the remainder beneficiary in
question was entitled to $3,179 as his share of the trust principal.
Respondent submitted an affirmation of services in which he asserted
that he expended in excess of 42 hours on the matter. He also
submitted a “Report and Recommendation” (hereafter, report) in which
he identified 23 items of service to the remainder beneficiary,
although there is no indication in the report with respect to how much
time respondent expended for each service. Further, neither
respondent’s affirmation nor his report includes his usual hourly fee
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                                                         CA 11-01621

or a recommendation of reasonable compensation for the time spent on
the matter.

     We conclude that the Surrogate erred in awarding respondent
$12,000 in guardian ad litem fees. It is well settled that a guardian
ad litem is entitled to a reasonable fee, and the reasonableness of
the fee is determined based on the same factors used to determine the
reasonableness of legal fees in general (see generally Matter of
Potts, 213 App Div 59, 61-62, affd 241 NY 593). Those factors include
“the nature, extent and necessity of the services, the actual time
spent, the nature and complexity of the issues involved, the
professional standing of counsel, and the results obtained” (Matter of
Slade, 99 AD2d 668). Here, there is no basis in the record to
ascertain whether the award to respondent was reasonable because he
failed to submit time records that would “substantiate the conclusory
allegation[s]” in his affirmation and report (id.). We therefore
reverse the decree insofar as appealed from and vacate the award of
guardian ad litem fees to respondent, and we remit the matter to
Surrogate’s Court to award respondent a reasonable fee based on the
appropriate factors.




Entered:   February 17, 2012                    Frances E. Cafarell
                                                Clerk of the Court
