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.
-2- 140 

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
-3- 140 

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