Clone This Judge !!

Surrogate Slashes Attorney's Fees For Bid to Probate Rejected Will
The New York Law Journal by Mark Fass - August 21, 2008

Two days before 83-year-old Faye Mancuso died in January 2000, she signed a new will disinheriting her family and naming a man she hardly knew as the sole beneficiary of her $1.68 million estate.

Ms. Mancuso's friend, Mary Pizzi, had suggested that her son, Michael Pizzi, could assist Ms. Mancuso in her efforts to relocate to a nursing home. Instead Mr. Pizzi, a private investigator and former marshal in the Eastern and Southern districts of New York, facilitated the drafting of the new will, which left him everything. In court papers, Mr. Pizzi claimed his relationship with Ms. Mancuso dated from his relationship with Ms. Mancuso dated from his early childhood when he says she was named his godmother. Now,two years after a jury threw out the will on the basis of Mr. Pizzi's undue influence, Brooklyn Surrogate Margarita Lopez Torres has refused his request for the $32,283 he claims he earned as preliminary executor to her estate. Surrogate Lopez Torres also rejected the application for $136,618 filed by the Bay Ridge law firm Connors & Sullivan, which represented Mr. Pizzi, awarding it a flat sum of $10,000 instead.

The judge concluded that justice precluded either Mr. Pizzi or Connors & Sullivan from benefiting from their own wrongdoing. "Where a fiduciary has sought to probate a will procured by undue influence, not only is the fiduciary not entitled to commissions but 'allowing the proponent of the will to recover his attorney's fees from the assets of the estate would be a perversion of justice because it would allow the proponent of the will to profit by his own wrong," Surrogate Lopez Torres wrote in Matter of Mancuso, 181/2000, citing Matter of Winckler, 243 A.D.2d 307. Ms. Mancuso and her older brother, Carmine, lived their entire lives in the same two-story house in Dyker Heights, Brooklyn. Neither married or had children. By the time they reached their 80s in the late 1990s, Mr. Mancuso suffered from chronic lung disease and kyphosis, the curving of the spine associated with so-called "hunchback."

Although the siblings' home and other assets were valued at more that $1.5 million, neighbors later said they lived like "poor people." Mr. Mancuso was known for being angry and disheveled, and the two reportedly communicated largely through screaming. Mr. Mancuso became ill around Christmas Eve 1999, at approximately the same time that Ms. Mancuso followed up on her friend's suggestion and engaged Mr. Pizzi, then 58, to help her find a nursing home. Court papers show that Mr. Pizzi instead focused his efforts on completing a new will for Ms. Mancuso, even though she had completed one in 1987 that left her estate to a first cousin in Florida and his wife.

Mr. Pizzi engaged Michael N. Connors of Connors & Sullivan to draft the will. Based in Bay Ridge, the firm has four offices and considers itself the "largest firm in Brooklyn specializing in elder law." The firm employs nine attorneys and was founded in 1980, according to Martindale.com. Mr. Connors later testified that he met with Ms. Mancuso exactly once and for less than an hour. He did not ask to see her previous will, nor for a family tree, a summary of assets or a list of the original will's beneficiaries. He did not take notes at the meeting, he said, as he did not originally intend to draft a will based on the single encounter. Shortly after that meeting, on January 7, 2000, Ms. Mancuso's brother, Carmine, died of cardiac arrest. "Carmine was dead less than a day when a team from [Connors & Sullivan] appeared at Mancuso's residence to have her execute a new will," according to a memorandum filed by Ms. Mancuso's cousin.

New Will Questioned

Two days after Ms. Mancuso signed the new will, Mr. Pizzi reportedly found her dead, sitting in a chair in her upstairs bedroom. Ten days after that, Mr. Pizzi petitioned to become the preliminary executor of Ms. Mancuso's estate. In October 2000, when Ms. Mancuso's cousin, Sebastian Grassi and his wife, Gloria, who were the primary beneficiaries of the 1987 will, learned of her death and her new will, they contacted the Brooklyn District Attorney's Office. According to news reports, the city Medical Examiner's Office exhumed Ms. Mancuso's body and performed an autopsy to determine whether she had died as Mr. Pizzi claimed. The office found insufficient information to determine the cause of death, and changed the official cause from cardiac arrest to "undetermined." Mr. Pizzi was not charged with any crimes. A spokeswoman for the Medical Examiner's Office said earlier this week that the file on the case is now in storage.

The Grassis also contested the 2000 will in Brooklyn Surrogate's Court, where a jury ruled in 2005 that Mr. Pizzi had exerted undue influence to procure the will. Mr. Pizzi and Connors & Sullivan then initiated a series of motions and appeals that has thus far extended the probate of the estate of Ms. Mancuso, who died more than eight years ago, by another three years. Mr. Pizzi and Connors & Sullivan first moved to set aside the jury's verdict, which Supreme Court Justice Albert Tomei, then sitting as an acting surrogate, denied in October 2005 (NYLJ, Oct. 3, 2005). They appealed that ruling to the Appellate Division, Second Department, which affirmed Justice Tomei. The firm next moved for reargument, which the Second Department also denied, then for leave to appeal to the Court of Appeals, which both the Second Department and the Court of Appeals rejected. On three separate occasions, the firm unsuccessfully sought to stay the probate of the original 1987 will. In 2006, Justice Tomei sanctioned Connors & Sullivan associate Marc Monte $500 for filing objections to the probate of the 1987 will. "In the instant case," Justice Tomei wrote, "the motion is not only frivolous but in bad taste."

In the present proceeding, Mr. Pizzi and Connor & Sullivan sought compensation for the work they performed during Mr. Pizzi's tenure as preliminary executor. According to an Affirmation of Legal Service submitted by the firm in support of the motion, Mr. Pizzi served as the preliminary executor from January 18, 2000, until March 1, 2006-- from 11 days after Ms. Mancuso's death until shortly after Justice Tomei refused to overturn the jury's decision to throw out the 2000 will because of Mr. Pizzi's undue influence. Prior to his removal, Mr. Pizzi agreed to pay Connors & Sullivan $200,000 for its work-- nearly one-eighth the total value of the estate-- associate Giovanni Silvagni stated in the firm's affidavit. That agreement notwithstanding, the firm sought only $134,618, or about 8 percent of the gross estate. The total represented, per the firm's own calculations, about a $40,000 premium for the "extraordinary" services it provided. For his work on behalf of the estate, Mr. Pizzi requested $32,283.

The Grassis, who were in their late 70s at the time of Ms. Mancuso's death and are now in their mid-80s, opposed compensating either Mr. Pizzi or the firm. "[T]he Second Department has stated that it would be a 'perversion of justice' to award fees to an attorney who represented the proponent of a will denied probate on the basis of undue influence," the Grassis argued, citing Winckler. "Here, several C&S employees, including Connors himself, exerted undue influence over Mancuso." The Grassis argued that at most the firm should be paid a fixed sum of $5,000. Surrogate Lopez Torres Granted the Grassis' motion for summary judgment. She denied Mr. Pizzi any compensation and awarded the firm a fixed fee of $10,000 for services "unrelated to the probate contest and which would have been performed whether or not the will was admitted to probate."

"Pizzi was the sole beneficiary of the Will, which was executed two days before Faye's death," Surrogate Lopez Torres wrote. "He was neither a relative nor a friend of the decedent. Under applicable law, Pizzi's bad faith prevents him from recovering executor's commissions." The same principle, Judge Lopez Torres wrote, applies to the attorney's fees. Manhattan litigator Kevin J. Farrelly and his associate Jeffrey H. Weinberger represented the Grassis. Mr. Farrelly called Surrogate Lopez Torres' decision yet another vindication of his clients and the original will. "what I think is important is that over an eight-year period my clients' rights have been consistently upheld by six jurors, three surrogate judges, two Appellate Division panels and the Court of Appeals," Mr. Farrelly said. "It shows that the will offered by Mr. Pizzi should never have been admitted to probate." Three of the key attorneys for Connors & Sullivan in Matter of Mancuso-- Mr. Connors, Mr. Silvagni and Edward R. Dorney-- did not return repeated calls for comment.   Mark.Fass@incisivemedia.com