Opinion
2012-09-25
Robert JAFFE, Plaintiff–Respondent, v. Lee Lee BROWN–JAFFE, Defendant, Bronstein Van Veen LLC, Nonparty Appellant.
Bronstein Van Veen LLC, New York (Peter E. Bronstein of counsel), for appellant. Howard Benjamin, New York, for respondent.
Bronstein Van Veen LLC, New York (Peter E. Bronstein of counsel), for appellant. Howard Benjamin, New York, for respondent.
ANDRIAS, J.P., SWEENY, MOSKOWITZ, FREEDMAN, RICHTER, JJ.
Order, Supreme Court, New York County (Saralee Evans, J.), entered December 12, 2011, which denied nonparty law firm's motion for a judgment in its favor in the amount of the outstanding legal fees allegedly owed by plaintiff, its former client, and referred the issue of the law firm's legal fees to a special referee for a hearing, unanimously modified, on the law and the facts, to vacate the reference and fix a charging lien in the amount of $75,789, and otherwise affirmed, without costs.
The record establishes that the law firm has stated an account in the principal amount of $75,789 (i.e., the billed amount minus the partial payment made on the account by plaintiff). The law firm demonstrated that it had entered into a retainer agreement with plaintiff and sent him regular invoices pursuant to the agreement, to which he did not object ( see Bartning v. Bartning, 16 A.D.3d 249, 250, 791 N.Y.S.2d 541 [1st Dept.2005] ). In addition, the partial payment plaintiff made on the bills established an account stated, as “either retention of bills without objection or partial payment may give rise to an account stated” ( Morrison Cohen Singer & Weinstein, LLP v. Waters, 13 A.D.3d 51, 52, 786 N.Y.S.2d 155 [1st Dept.2004] ). Under these circumstances, the court should not have referred the matter to a special referee to determine the reasonable value of the legal services rendered. Instead, it should have fixed a charging lien based upon the account stated ( see Tunick v. Shaw, 45 A.D.3d 145, 149, 842 N.Y.S.2d 395 [1st Dept.2007]; Bartning v. Bartning, 16 A.D.3d at 250, 791 N.Y.S.2d 541).
The law firm was not entitled to entry of a money judgment. Although the amount of a charging lien may be determined and fixed before the outcome of the case, the charging lien does not provide for an immediately enforceable judgment against all assets of the former clients ( Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 219, 651 N.Y.S.2d 525 [1997] ). Rather, the lien is security against a single asset of the client—a judgment or settlement reached in favor of the former client in the underlying matter ( id.). Since the record here does not show that there has been a final judgment in this action, the law firm's request for a money judgment was properly denied ( see Squitieri v. Squitieri, 77 A.D.3d 428, 428, 910 N.Y.S.2d 42 [2010] ). Should the law firm wish to obtain a judgment enforceable against plaintiff's other assets, it can bring a separate plenary action ( see Butler, 235 A.D.2d at 218–219, 651 N.Y.S.2d 525).