Surrogate Margarita Lopez Torres


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Petitioner attorney sought for the court to fix and determine legal fees in this uncontested proceeding, and allowing him to file a lis pendens on real property. Decedent executed an agreement with petitioner agreeing that legal fees would be calculated at five percent of the gross estate—whose sole asset was decedent’s real property which petitioner estimated was valued at $1.4 million. The court noted petitioner was a party to the petition and his proffered verification failed to set forth grounds for his belief in the facts alleged upon information and belief. It stated while defects in a pleading were to be liberally construed, use of an attorney’s verification by a petitioning attorney, in lieu of a sworn verification, rendered same improper. Petitioner also attached an attorney affirmation alleging to est forth facts to support his petition, but sworn facts must be in the form of an affidavit, not affirmation if an attorney was a party to a petition seeking legal fees. Thus, the petitioner-attorney’s affirmation was inadmissible to support his claims. Also, even overlooking the defects, the court ruled petitioner failed to set forth facts allowing it to determine reasonable attorney fees as the affirmation was devoid of any description of services rendered, denying the petition.