Matter of Hart 2025 NY Slip Op 04993 Decided on September 17, 2025 Appellate Division, Second Department discusses the applicability of Part 137 arbitrations to legal malpractice defenses and attorney fee awards in Surrogate’s Court, as well as the necessity of an engagement letter.

“In 2014, Clifford J. Hart (hereinafter the decedent) executed a will with the assistance of the petitioner, a law firm that provides estate planning services. The decedent died in November 2014, survived by his sons Jake Hart and Alex Hart. Subsequently, the petitioner began work on behalf of the Estate of Clifford J. Hart (hereinafter the estate). No engagement letter was executed. [*2]In February 2015, after the petitioner secured the appointment of Jake Hart as administrator of the estate, Martin Goldman informed the petitioner that the estate would not pay the petitioner’s invoices because there was no executed engagement letter.

In June 2015, the petitioner filed a petition pursuant to SCPA 2110 to fix and determine compensation for services rendered on behalf of the estate. The estate, Jake Hart, Alex Hart, and Naomi Hart (hereinafter collectively the appellants) interposed an amended answer with counterclaims.

In August 2021, after discovery disputes and the issuance of various discovery orders, the appellants moved, inter alia, for summary judgment dismissing the petition on the ground that the petitioner failed to comply with an obligation to serve the appellants with notice of a right to resolve the underlying fee dispute via arbitration pursuant to 22 NYCRR part 137. Thereafter, the petitioner moved for leave to renew that branch of its prior motion which was pursuant to CPLR 3126 to strike the appellants’ amended answer with counterclaims based on the appellants’ repeated failure to comply with discovery requests and orders, which had been denied in an order dated May 5, 2021, and for an award of attorneys’ fees incurred in making the motion.

In an order dated January 12, 2022, the Surrogate’s Court, among other things, denied that branch of the appellants’ motion which was for summary judgment dismissing the petition, granted leave to renew and, upon renewal, granted that branch of the petitioner’s prior motion which was pursuant to CPLR 3126 to strike the appellants’ amended answer with counterclaims, granted that branch of the petitioner’s motion which was for an award of attorneys’ fees incurred in making the motion, and granted the petition to the extent of awarding the petitioner legal fees in the sum of $14,537.50 and disbursements in the sum of $655, to be charged against the estate. In an order dated March 15, 2022, the court, inter alia, directed Jake Hart and Alex Hart to pay the petitioner the principal sum of $4,735 as an award of attorneys’ fees incurred in making the motion, among other things, for leave to renew. These appeals ensued.

SCPA 2110(1) provides that “[a]t any time during the administration of an estate and irrespective of the pendency of a particular proceeding, the court is authorized to fix and determine the compensation of an attorney for services rendered to a fiduciary or to a devisee, legatee, distributee or any person interested.” A proceeding pursuant to SCPA 2110 may be initiated by “an attorney who has rendered services” to an estate (id. § 2110[2]). The Surrogate’s Court has broad discretion to determine what constitutes a reasonable attorney’s fee for such services, regardless of the terms of a retainer agreement or other agreement between the parties (see Matter of Brody, 202 AD3d 781, 782; Matter of LiGreci, 195 AD3d 617, 618; Matter of McCann, 236 AD2d 405, 406).

The New York State Fee Dispute Resolution Program (hereinafter the Fee Dispute Resolution Program) (22 NYCRR part 137) provides “for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation” (id. § 137.0). Part 137 expressly provides that it does not apply to “claims involving substantial legal questions, including professional malpractice or misconduct” (id. § 137.1[b][3]; see Soni v Pryor, 102 AD3d 856, 857).

Here, contrary to the appellants’ contention, they did not have a right to arbitrate the issues raised in this proceeding in the Fee Dispute Resolution Program, and thus, they had no right to a notice advising them of such a right. The Fee Dispute Resolution Program “is a creature of court rules and does not supplant or otherwise displace the authority of [the] Surrogate’s Court to fix counsel fees—authority conferred by statute” (Matter of Ruth A. Timm Irrevocable Trust [Moore—St. Julien], 222 AD3d 1051, 1053; see 22 NYCRR 137.1[b]). Further, to the extent that the appellants’ counterclaims alleged legal malpractice by the petitioner, arbitration pursuant to the Fee Dispute Resolution Program was not available here (see 22 NYCRR 137.1[b][3]; Matter of Ruth A. Timm Irrevocable Trust [Moore—St. Julien], 222 AD3d at 1052; Mahler v Campagna, 60 AD3d 1009, 1012). Accordingly, the Surrogate’s Court properly denied that branch of the appellants’ motion which was for summary judgment dismissing the petition.”