The Westchester County Surrogate’s Court now permits reimbursement from the estate to counsel for executors and administrators for Federal Express charges incurred, a change to the court’s past practices, potentially setting off a broader trend reflecting technological changes in the courts and new communications customs resulting from Covid-19.
In Estate of Patt (2015-784/A), Surrogate Brandon R. Sall issued an Amended Decision dated February 16, 2021 allowing the law firm of Schupbach, Williams & Pavone, LLP to be reimbursed for $109.88 in Federal Express charges from the decedent’s estate.
The law firm had represented the administrator of the estate, who sought to judicially settle her account. An application was made by the law firm for reimbursement for fees and disbursements. Included in the firm’s request for disbursements were charges for FedEx in the amount of $109.88.
Surrogate Sall explained that “historically, this court has not permitted reimbursement of such charges to counsel, as it has considered Federal Express and the like to be a component of office overhead, which is not reimbursable.”
Indeed, attorneys cannot charge to the estate items of law office overhead, such as messenger services and postage, according to New York Estate Administration, 2020 Edition at § 13.02[b] on page 465.
Surrogate Sall reasoned that, however, “in today’s world, overnight mail service offers many advantages. It gives the sender the ability to track mailing and confirm delivery, while also giving attorneys the confidence to forego in-person court filing.”
The Surrogate also reasoned in Estate of Patt that the reasonable time billed by attorneys and paraprofessionals to file documents in the court would be compensable. “Using an overnight mail service to ensure a prompt and timely filing seems more practical and certainly more cost effective to the estate” Surrogate Sall wrote in his decision. “Thus, and in light of the ‘extraordinary discretion’ given to the court in determining and fixing counsel fees and disbursements (Matter of Graham, 238 AD2d at 687), the request for reimbursement of disbursements for Federal Express in the amount of $109.88 is granted.”
Whether Estate of Patt is an anomaly, a new rule limited to Westchester, or part of a broader trend and changes to case law, is yet to be seen. However, given cultural changes resulting from Covid-19 and the New York State Unified Court System’s embrace of remote filing and other technologies, it would seem that Estate of Patt could serve as an early indicator of an evolution in case law throughout the state.