In re the Judicial Settlement of the Final Account of Manufacturers & Traders Trust Co.

Appeals and cross appeal from an order of the Surrogate’s Court, Onondaga County (Peter N. Wells, S.), entered December 17, 2008. The order, among other things, denied that part of respondents’ motion for an award of counsel fees. It is hereby ordered that said cross appeal is unanimously dismissed and the order is otherwise affirmed without costs. 1574 Memorandum: Petitioner commenced this proceeding as the executor of decedent’s estate seeking approval of its account. Respondents, the beneficiaries of the estate, filed various objections. Following a trial, Surrogate’s Court concluded, inter alia, that petitioner was negligent in its fiduciary duty by failing to discover certain assets of the estate consisting of a block of IBM stock, and the Surrogate imposed a surcharge for petitioner’s failure to marshal the estate assets and sell that stock. Respondents thereafter moved for, inter alia, an award of counsel fees, and.the Surrogate refused to award such fees. Although it is well settled that a Surrogate has the discretion to order a fiduciary to pay counsel fees (see generally Matter of Garvin, 256 NY 518, 521 [1931]; Matter of Manufacturers & Traders Trust Co., 66 AD3d 1377, 1380-1381 [2009]; Matter of Birnbaum v Birnbaum, 157 AD2d 177, 191 [1990]), here, the Surrogate did not abuse his discretion in refusing to award counsel fees based on his conclusion that there was no evidence of bad faith, fraud, self-dealing or theft (see Matter of Saxton, 274 AD2d 110, 121 [2000]). We further conclude, based on the colloquy during oral arguments before the Surrogate, that he was aware that he had the discretion to order petitioner to pay counsel fees. In light of our determination, we dismiss petitioner’s cross appeal as moot. Present — Martoche, J.P., Centra, Fahey, Peradotto and Pine, JJ.