GUARDIAN AD LITEM - WHO PAYS?

If your defendant is in need of a Guardian Ad Litem, this may be an extra cost in the litigation.

41-43 Lawrence Realty LLC v Thompson, 2019 NY Slip Op 51068(U), Decided on June 26, 2019, District Court Of Nassau County, First District Fairgrieve, J.

"As provided by CPLR 1202(a), "[t]he court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative...." Also, pursuant to CPLR 1204:

"A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person's other property. No order allowing compensation shall be made except on an affidavit of the guardian or his attorney showing the services rendered."

In the instant matter, petitioner's counsel acknowledges that he received the subject order on February 4, 2019. He further states that he only skimmed the order and did not see the provision that the petitioner would be required to pay the legal fees of the guardian ad litem pursuant to CPLR 1204. He further argues that since the order was issued by the court sua sponte, the petitioner did not have an opportunity to oppose the inclusion of this provision. However, petitioner's counsel fails to explain why he waited almost two (2) months to challenge same. Regardless, as previously stated, the court may sua sponte allow a guardian ad litem to be paid in whole or part by any other party (see CPLR 1202[a] and 1204), and petitioner's attorney has not provided any legal authority in support of the instant motion. Accordingly, the petitioner's motion is denied in all respects.

In his cross motion, Mr. Imbroto asserts that he expended 15.9 hours on this matter, and that his hourly billing rate is $375.00 per hour, for a total $5,962.00. He also separately sets forth each of the dates, the amount of time expended and a description of the services rendered. In his motion, petitioner's counsel argues these fees are "way out of line" and that guardian ad litems in the City of New York "are paid a $675.00 flat fee whether they are appointed by motion or sua sponte" (Notice of Motion, ¶ 6).

"In determining reasonable compensation, the responsibility, time and attention required, the result obtained, and the funds available to the person who must bear the cost of the guardian ad litem must be considered" (Alias v Olahannan, 15 AD3d 424, 425 [2d Dept 2005]). Based upon all of the circumstances presented herein, the court determines that the guardian ad litem's fee should be reduced to a rate of $250.00 per hour. Accordingly the petitioner shall pay to Mr. Imbroto the amount of $3,975.00, representing 15.9 hours at a rate of $250.00 per hour, in reasonable compensation for services rendered."