Opinion
# 2012-015-299 Claim No. 117868 Motion No. M-80602
02-10-2012
LIBERTY TREE v. THE STATE OF NEW YORK
Synopsis
Claimant's attorney's motion to be relieved as counsel was granted with conditions. Case information
UID: 2012-015-299 Claimant(s): LIBERTY TREE SERVICE, INC. Claimant short name: LIBERTY TREE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117868 Motion number(s): M-80602 Cross-motion number(s): Judge: FRANCIS T. COLLINS Fox & Kowalewski, LLP Claimant's attorney: By: Laurence I. Fox, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: Glenn C. King, Esquire Assistant Attorney General No Appearance Third-party defendant's attorney: Signature date: February 10, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant's counsel, Fox & Kowalewski, LLP, moves by Order To Show Cause to be relieved as counsel for the claimant. Counsel also seeks the establishment of a charging lien and a 90-day stay of the action to permit claimant to retain new counsel.
A claim on behalf of Liberty Tree Service, Inc. alleging damages for defendant's breach of a contract was filed and served on January 5, 2010 . Laurence I. Fox, a partner in the movant's law firm, asserts that he has been unable to communicate with Jerry Ippolito, President of Liberty Tree Service, Inc., since his last telephone contact in February 2011. At that time, Mr. Ippolito was living in Arizona and did not respond to Mr. Fox's inquiry regarding his return to New York to review documents and records in the possession of the Department of Transportation. Mr. Fox avers that since February 2011, his firm has attempted to contact Mr. Ippolito by telephone and both certified and first-class mail to no avail. Mr. Ippolito's telephone has been disconnected and Mr. Fox's letter requesting that Mr. Ippolito contact his office was returned as undeliverable. Mr. Fox also avers that Mr. Ippolito signed a retainer agreement with respect to this claim but has not paid the bill in full. Neither the retainer agreement nor a complete itemization of the services rendered by the movant has been submitted in support of the instant motion.
A lawyer may withdraw from representing a client if the client "renders the representation unreasonably difficult for the lawyer to carry out employment effectively" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16 [c] [7]). Here, counsel for the claimant demonstrated that his inability to communicate with his client renders it unreasonably difficult to carry out his firm's employment effectively (see Musachio v Musachio, 80 AD3d 738 [2011]; Bok v Werner, 9 AD3d 318 [2004]; Tartaglione v Tiffany, 280 AD2d 543 [2001]). Movant therefore established justifiable cause to be relieved as counsel for the claimant.
Movant also seeks to establish a charging lien with respect to the services rendered. A charging lien comes into existence upon commencement of the action pursuant to Judiciary Law § 475
Judiciary Law § 475 provides the following:
"From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien."
(City of Troy v Capital Dist. Sports, 305 AD2d 715, 716 [2003]; Matter of Dresner v State of New York, 242 AD2d 627, 628 [1997], lv granted 91 NY2d 807 [1998], appeal dismissed 91 NY2d 1001 [1998]). A charging lien "is a vested property right created by law" which gives the attorney an equitable ownership interest in his or her client's cause of action (LMWT Realty Corp. v Davis Agency, 85 NY2d 462, 467 [1995]). Thus, the lien attaches to any judgment or settlement reached in favor of the former client and is therefore contingent upon a successful outcome in the case (id.; Schneider, Kleinick, Weitz, Damashek & Shoot v City of New York, 302 AD2d 183, 188 [2002]; Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218, 219 [1997]). The charging lien may be applicable not only in cases in which the attorney is discharged, but where he or she justifiably withdraws (Delaj v Jameson, 51 AD3d 450, 451 [2008], lv dismissed 11 NY3d 816 [2008]; Matter of Lambrou v Lambrou, 252 AD2d 797, 798 [1998]). Inasmuch as the circumstances giving rise to the instant application, as set forth above, establish movant's withdrawal is justified, a charging lien arises by operation of law. Insufficient documentary evidence has been submitted, however, to enable the Court to determine the reasonableness of the amount of the lien sought (see generally Jacobson v Sassower, 66 NY2d 991 [1985]; Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d 914 [2004]; Kahn v Kahn, 186 AD2d 719 [1992]). Accordingly, in the event of a recovery by the claimant, a hearing to determine the amount of movant's charging lien will be scheduled.
Movant having submitted sufficient evidence that service of the order to show cause, together with the supporting papers, was effected on both the claimant and defense counsel, and there being no opposition thereto, it is hereby
ORDERED, that upon compliance with the conditions hereinafter set forth, movant's application to withdraw as counsel for the claimant is granted pursuant to CPLR 321 (b) (2); and it is further
ORDERED, that within fifteen (15) days of the filing of this Decision and Order, withdrawing counsel shall serve a copy thereof with notice of entry upon claimant by regular mail and by certified mail, return receipt requested, at its last known address. A copy of the Decision and Order shall also be served upon defense counsel by regular mail and affidavits of such service shall be filed with the Clerk of the Court. It is further
ORDERED, that within fifteen (15) days of the filing of this Decision and Order, withdrawing counsel shall provide claimant with a copy of its file by regular mail and by certified mail, return receipt requested, at its last known address. Counsel shall file an affidavit of compliance with the Clerk of the Court. It is further
ORDERED that the movant shall be relieved as counsel for claimant upon receipt of the affidavit of service and affidavit of compliance in the Office of the Clerk of the Court of Claims. It is further
ORDERED, that all proceedings herein are stayed for sixty (60) days from the filing of this Decision and Order. Within such time claimant shall secure new counsel who shall file a Notice of Appearance with the Clerk of the Court (New York State Court of Claims, P.O. Box 7344, Capitol Station, Albany, NY 12224).
Claimant's failure to secure new counsel as directed herein may result in the dismissal of its claim for failure to prosecute.
February 10, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Order to show cause filed November 1, 2011;
2. Affidavit of Laurence I. Fox sworn to October 7, 2011 with exhibits.