Opinion
2015-03-3
In re UNI–RTY CORPORATION, et al., Petitioners–Appellants, v. NEW YORK GUANGDONG FINANCE, INC., et al., Respondents. Russ & Russ, P.C., Nonparty Respondent.
Stuart D. Root, Livingston Manor, for appellants. Russ & Russ, P.C., Massapequa (Jay Edmond Russ of counsel), for respondent.
Stuart D. Root, Livingston Manor, for appellants. Russ & Russ, P.C., Massapequa (Jay Edmond Russ of counsel), for respondent.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered October 28, 2013, which, insofar as appealed from, granted nonparty Russ & Russ P.C. (petitioners' former counsel) a charging lien pursuant to Judiciary Law § 475, and referred determination of the amount of the lien to a Special Referee, unanimously modified, on the law and the facts, to refer the matter to a Special Referee to determine whether Russ & Russ was entitled to enforce its charging lien, and, if the Referee determines that Russ & Russ was so entitled, to determine the amount of the lien, and otherwise affirmed, without costs.
Petitioners contend that a motion for a charging lien is subject to the same standards as a motion for summary judgment. This argument is based on the fact that the last sentence of Judiciary Law § 475 says, “The court upon the petition of the client or attorney may determine and enforce the lien” (emphasis added). Petitioners note that a petition is a pleading in a special proceeding ( seeCPLR 402) and that “a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment” (Karr v. Black, 55 A.D.3d 82, 86, 863 N.Y.S.2d 26 [1st Dept.2008], lv. denied11 N.Y.3d 712, 872 N.Y.S.2d 74, 900 N.E.2d 557 [2008] ). However, “Judiciary Law § 475 ... permits enforcement of the lien either by way of motion in the main action or by plenary action” (Miller v. Kassatly, 216 A.D.2d 260, 261, 628 N.Y.S.2d 687 [1st Dept.1995] ). Since Russ & Russ was not required to bring a special proceeding, its motion for a charging lien was not subject to the same standards as a motion for summary judgment.
“[W]here an attorney's representation terminates and there has been ... no unjustified abandonment by the attorney, the attorney's right to enforce the statutory charging lien is preserved” (Klein v. Eubank, 87 N.Y.2d 459, 464, 640 N.Y.S.2d 443, 663 N.E.2d 599 [1996] ). In the instant proceeding, as in Klein, there is a dispute about whether the attorney abandoned his client. Therefore, “a hearing should be held on the question of [the former attorney's] entitlement to enforcement of his statutory charging lien” ( id.) .
“[D]etermination and enforcement of a charging lien” is “an equitable claim triable by the court” (Grutman Katz Greene & Humphrey v. Goldman, 251 A.D.2d 7, 7, 673 N.Y.S.2d 649 [1st Dept 1998]; see also Matter of King, 168 N.Y. 53, 58–59, 60 N.E. 1054 [1901] ). Hence, the IAS court had the power to appoint a referee ( see King, 168 N.Y. at 58, 60 N.E. 1054). Matter of Jacob D. Fuchsberg Law Firm v. Danzig, 248 A.D.2d 178, 670 N.Y.S.2d 766 [1st Dept.1998] is not to the contrary, as that case involved a “dispute between attorneys over the sharing of contingency fees” (id. at 179, 670 N.Y.S.2d 766) and had been converted into a plenary action for breach of contract (id. at 178–179, 670 N.Y.S.2d 766). ACOSTA, J.P., ANDRIAS, SAXE, DeGRASSE, RICHTER, JJ., concur.