Opinion
February 1, 1991
Appeal from the Supreme Court, Ontario County, Purple, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: It was error for Supreme Court to fix the amount of counsel's retaining lien without a hearing (see, Ventola v Ventola, 112 A.D.2d 291, 292-293; Petrillo v Petrillo, 87 A.D.2d 607; Gamble v Gamble, 78 A.D.2d 673; Yaron v Yaron, 58 A.D.2d 752). Plaintiff's contention that his counsel is not entitled to a retaining lien because he was discharged for cause is raised for the first time on appeal and will not be considered. We, therefore, remit this matter to Supreme Court for a hearing to fix the amount of the outgoing attorney's lien for his services and disbursements and conditioning the turnover of plaintiff's file on payment of the sum found to be due or the posting of security therefor (see, Yaron v Yaron, supra).