Opinion
# 2011-031-067 Claim No. 116491 Motion No. M-80337 Cross-Motion No. CM-80423
01-05-2012
NORTHROP v. THE STATE OF NEW YORK
Synopsis
Claimant's first counsel, discharged for cause, has no right to an attorney's lien, earned no fee based upon quantum meruit and has been properly reimbursed for legitimate disbursements. Case information
UID: 2011-031-067 Claimant(s): DANIEL R. NORTHROP Claimant short name: NORTHROP Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116491 Motion number(s): M-80337 Cross-motion number(s): CM-80423 Judge: RENÉE FORGENSI MINARIK CELLINO & BARNES, P.C. Claimant's attorney: BY: K. JOHN WRIGHT, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: BY: THOMAS G. RAMSAY, ESQ. Assistant Attorney General Third-party defendant's attorney: Signature date: January 5, 2012 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers, numbered 1 to 8, were read on motion by Claimant's counsel, and on cross-motion by Non-Party Respondent, William K. Mattar, P.C., Claimant's previous counsel, for an order determining their respective rights to the attorney's fees generated in this matter:
1) Order To Show Cause (M-80337), filed September 2, 2011;
2) Affirmation of K. John Wright, Esq., dated August 3, 2011, with exhibits;
3) Notice of Cross-Motion, filed on September 26, 2011;
4) Affirmation of F. David Rusin, Esq., dated September 20, 2011, with exhibits;
5) Reply Affirmation of K. John Wright, Esq., dated September 27, 2011, with exhibit;
6) Reply Affirmation of F. David Rusin, Esq., dated September 29, 2011;
7) Correspondence of F. David Rusin, Esq., dated October 14, 2011, with enclosures;
8) Correspondence of K. John Wright, Esq., dated October 24, 2011;
9) Correspondence of K. John Wright, Esq., dated November 1, 2011.
I have before me two applications, both seeking the resolution of a dispute concerning attorney's fees between Cellino & Barnes, P.C. (Cellino), the law firm that represented Claimant during all significant phases of the litigation of this claim, and William K. Mattar, P.C. (Mattar), the law firm that originally filed the claim.
Cellino initiated this proceeding by order to show cause, directing Mattar to demonstrate why it should be entitled to any attorney's fee in this matter. Mattar then filed a cross-motion requesting denial of Cellino's application on jurisdictional grounds or, alternatively, granting William K. Mattar, P.C., its fair portion of the attorney's fees in question.
By way of background, Claimant Daniel R. Northrop was seriously injured in a motor vehicle accident on October 19, 2007. On October 22, 2007, while still in the hospital, Claimant signed a retainer agreement with Mattar. Although counsel dispute what was done and what benefits were received after Mattar was retained, for purposes of this claim Mattar did nothing else of significance before being discharged by Mr. Northrop on February 24, 2009. Then, approximately eight days after being discharged, Mattar filed the claim in this matter, using a verification signed by Mr. Northrop more than a year before.
Thereafter, Cellino stewarded the claim through discovery, motion practice and even trial. During the trial, Cellino managed to successfully negotiate a settlement of the claim. At no point during the litigation did Mattar turn over its file to Cellino. In fact, apart from Mattar's demanding payment of its disbursements before turning over its file, and Cellino's counter-argument that many of the disbursements charged to Claimant were inappropriate, counsel did not communicate concerning Mr. Northrop's claim.
In addition to Cellino's allegations of Mattar's failure to turn over the file and inappropriate disbursement charges, Cellino also argues that several miscues on Mattar's part clearly demonstrate that Mattar was fired for cause and, therefore, is entitled to no fee. These include: 1) filing the action in the wrong court; 2) committing malpractice by failing to preserve and properly process Mr. Northrop's lost wage claim; and 3) improperly charging Claimant for filling out loan applications on his behalf.
While Respondent Mattar objects to the characterizations of its actions by Cellino, it does not dispute that: 1) Mattar commenced the action in the wrong court; 2) Mattar charged Claimant improperly for disbursements and refused to turn over Claimant's file unless these improper charges were paid; 3) Mattar failed to preserve Claimant's lost wage claim; and 4) Mattar failed to file the claim in this matter until eight days after being discharged by Claimant.
In light of Mattar's relative inactivity for 17 months and Mr. Northrop's statement expressing his frustration with Mattar's unresponsiveness after being retained, I find this last act (filing the claim after being discharged) particularly troubling. It perhaps reflects an intent to protect Mattar and a subsequent claim to an attorney's lien under Judiciary Law § 475, more than an attempt to advocate rigorously for Mr. Northrop.
I note that it was not until these issues were presented to me that Mattar reevaluated its disbursement charges and agreed to a reduced amount (October 14, 2011 Rusin correspondence). Cellino promptly paid this reduced disbursement amount without waiting for input from the Court (see November 1, 2011 Wright correspondence). Mattar's disbursements have, accordingly, been paid in full. As set forth below, no further payment to Mattar is required.
With regard to Mattar's jurisdictional objection, I find that this Court does indeed have jurisdiction over this matter, pursuant to § 475 of the Judiciary Law (see Matter of Dresner v State of New York, 242 AD2d 627, 628).
With regard to the merits of this dispute, I find that Mattar's filing of the claim after being discharged did not bestow upon Mattar the right of an attorney's charging lien pursuant to § 475 of the Judiciary Law. Further, even if it did, I find that Mattar was discharged for cause and, therefore, has no right to an attorney's charging lien (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38; Dragutescu v City of New York, 38 AD3d 709). Finally, after reviewing the records in this matter, I find that the only act performed by Mattar that was arguably of any assistance to Claimant in this matter was the filing of the claim. This, however, was done after being discharged. Accordingly, I find that Mattar is not entitled to an attorney's fee on a theory of quantum meruit.
Accordingly, it is hereby
ORDERED, that Cellino's application (M-80337) is granted to the extent that no further payments to Mattar for either disbursements or attorney fees are due; and it is further
ORDERED, that Mattar's cross-motion (CM-80423) is denied.
January 5, 2012
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims