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Surrogate's Court, Westchester County, October 23, 2009
APPEARANCES OF COUNSEL
Schuman Sall & Geist, White Plains (Brandon Sall of counsel), for petitioner. Miesha L.M. Rodriguez, Hopewell Junction, guardian ad litem. Jarrett G. Roth, New York City, for Venio LLC, Formerly Known as Jaisan, Inc.
{**26 Misc 3d at 643} OPINION OF THE COURT
Anthony A. Scarpino, Jr., S.
In this uncontested proceeding to settle his final account, the Public Administrator requests the following: to allow commissions and fees for professional services; to allow Venio LLC, formerly Jaisan, Inc. (hereinafter referred to as Venio), a 15% finder's fee for locating abandoned and unclaimed assets; to allow the claim of the Westchester County Department of Social Services (DSS); and to direct distribution of the balance of the estate, if any, to the Comptroller of the State of New York for the benefit of decedent's unknown distributees.
Decedent died on February 12, 1998 a resident at the Regency Extended Care Center, Yonkers, New York. Prior to her death, an article 81 property guardian had been appointed for decedent. In May 2005, Venio informed the Public Administrator of decedent's death and that it had located assets in her name. Letters of administration issued to the Public Administrator on October 7, 2005.[FN*] Thereafter, the Public Administrator located an alleged maternal first cousin once removed who has not appeared in this proceeding.
The Public Administrator collected four assets: the proceeds of a guardianship account in the amount of $59,370.87; an unclaimed savings account with JPMorgan Chase in the amount of $44,240.50 (the Chase account); abandoned funds held by the Comptroller which were previously held in an account at Bank of New York in the amount of $144.79; and abandoned funds held by the Comptroller which were previously held in a bank account at JPMorgan Chase in the amount of $64,269.58.
At the time Venio notified the Public Administrator of decedent's death, it sought a finder's fee equal to 15% of the Chase unclaimed funds and subsequently sought a 15% fee for{**26 Misc 3d at 644} locating funds held with the Comptroller. There is no written agreement between Venio and the Public Administrator for the payment of a finder's fee, nor have the terms of the alleged oral agreement been established. It is noteworthy that in his petition the Public Administrator seeks approval of the finder's fee but does not admit the existence of an agreement. The requested fee is shown on an amended schedule C-1 (unpaid administration expenses) of the account.
Venio maintains that notwithstanding the absence of a written agreement, the court should allow it a finder's fee because its services benefitted the estate. It suggests that a benefit may inure to the alleged first cousin once removed if the distributee is able to establish his status, or [*2]alternatively to DSS as a creditor of the estate. Additionally, Venio argues that the fee should be allowed because no objections have been raised to its payment.
The court rejects Venio's latter contention. Because the Public Administrator seeks approval of the requested finder's fee in his petition and account, the lack of objections does not preclude the court from examining its propriety. It is well settled that the Surrogate has the inherent authority to inquire into the contents of an account and petition and to determine any matter therein (Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Devlin, 182 AD2d 322 [1992]; Matter of Hawwa A., 9 AD3d 362 [2004]). Moreover, SCPA 2211 (1) provides that in a voluntary accounting proceeding, upon the return of process, "the court must . . . make such order or decree as justice shall require."
Under the circumstances of this matter, the court concludes that it is particularly appropriate to review the agreement, despite the absence of objections.
Fee agreements by a fiduciary have historically been subject to judicial scrutiny (Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Devlin, 182 AD2d 322 [1992]; Greenpoint Bank v Criscione, 23 Misc 3d 1106[A], 2009 NY Slip Op 50604[U] [2009]; see also SCPA 2112). A pertinent example is found in Devlin where the Appellate Division, Second Department, considered the Abandoned Property Law relevant to its analysis of whether a fee agreement between an administrator and an heir locator was fair and reasonable. There, the Court discussed the purpose underlying Abandoned Property Law

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