
    In the Matter of Joan Schaefer, as Executrix of Max S. Schaefer, Deceased, Respondent, v David J. Goldstein, Appellant.
   Order unanimously modified, and, as modified, affirmed, without costs, in accordance with the following memorandum: In this proceeding to fix and determine attorney’s fees, Surrogate’s Court determined, on the basis of the proof submitted to it, that respondent attorney was liable for payment of any penalty that might be imposed against the estate on account of the late filing of the Federal estate tax return. Upon our review of the record, we find such a determination to be against the weight of the evidence (cf. Matter of Potts, 213 App Div 59, 63, affd 241 NY 593). The documentary proof submitted by respondent clearly supports his averments that another attorney had been retained by petitioner to handle all tax matters relative to the estate. Thus, we find no basis in this record for Surrogate’s Court determination that respondent is liable for payment of any penalty that might be imposed against the estate on account of the late filing of the Federal estate tax return. Nor do we find any basis in the record for the court’s determination that the estate suffered a net loss of $976 by reason of overprepayment of the New York State estate tax. Inasmuch as the record herein is sufficient to support a dispositive determination, we find Surrogate’s Court determination of respondent’s attorney fee to be reasonable (see Matter of Potts, supra, p 62), but we would delete from the court’s order those determinations holding respondent liable for any amount allegedly resulting from penalties for estate tax matters. (Appeal from order of Erie County Surrogate’s Court, Mattina, S. — attorney’s fees.) Present — Dillon, P. J., Doerr, Denman, O’Donnell and Schnepp, JJ.  