Opinion
Index No. 103711/2010
08-29-2022
Kim Valentini, Plaintiff, v. 326 East 30th Street Owners, Inc., THE BOARD OF DIRECTORS OF 326 EAST 30TH STREET OWNERS INC., TAV CLAVIN, TOM BIRNE, CLAUDIA WHITEHEAD, CAROL WINER, and SUSAN CLAVIN, Defendants.
Gallet Dryer & Berkey, LLP, New York, NY (Morrell I. Berkowitz of counsel), pro se. Mandel Bhandari LLP, New York, NY (Robert Glunt of counsel), for plaintiff. No appearance for defendants.
Unpublished Opinion
Gallet Dryer & Berkey, LLP, New York, NY (Morrell I. Berkowitz of counsel), pro se.
Mandel Bhandari LLP, New York, NY (Robert Glunt of counsel), for plaintiff.
No appearance for defendants.
Gerald Lebovits, J.
This motion arises from a long-running action between a resident of a cooperative apartment building (plaintiff Kim Valentini) and her coop (defendant 326 East 30th Street Owners, Inc.). Plaintiff's former counsel (Gallet Dreyer & Berkey, LLP) previously moved, in effect, for imposition of a charging lien on a judgment obtained by plaintiff against the coop in the action, and to require the coop and its current counsel to set aside sufficient funds to satisfy that lien.
In March 2022, this court granted that motion to the extent of directing a virtual fee hearing on Microsoft Teams. (See NYSCEF No. 281.) A fee hearing was held in May 2022; and the parties provided the court with the minutes from the hearing in August 2022. (See NYSCEF No. 285 [hearing transcript].) The court heard testimony at the hearing from plaintiff and from Gallet Dreyer partner Morrell Berkowitz, Esq., the firm's lead lawyer on the matter. Based on the parties' briefing on the motion and the testimony at the hearing, this court amends its March 2022 order to grant Gallet Dreyer's motion on its merits (not merely to require a hearing).
This court is not persuaded by plaintiff's contention (NYSCEF No. 267 at 6-7) that the firm waived a charging lien by waiting until several years after it was discharged in November 2018 to ask for a determination of the amount of the lien. For these purposes, waiver by delay is measured from when the lien attaches - i.e., when there "exist[]... proceeds created by the attorney's efforts" (Kaplan v Port Taxi, Inc., 89 A.D.2d 577, 578 [2d Dept 1982])-not from when the attorney is discharged. (See Kaplan v Reuss, 68 N.Y.2d 693, 694 [1986].) Here, the earliest Gallet Dreyer could have asserted a charging lien was not November 2018 but March 2021, following this court's order granting in part a referee's report in plaintiff's favor. (See NYSCEF No. 237.) And Berkowitz filed this motion on behalf of Gallet Dreyer in October 2021. (See NYSCEF No. 243 [proposed order to show cause].) This court concludes that Gallet Dreyer brought its charging-lien motion within a reasonable time, and therefore did not waive the lien by delay.
Plaintiff also argues that Gallet Dreyer is not entitled to a charging lien because she fired Berkowitz/Gallet Dreyer for cause. This court is not persuaded that plaintiff's testimony at the hearing showed that her reasons for firing Berkowitz and Gallet Dreyer went beyond just "dissatisfaction with [Berkowitz's] performance" and were based instead on "negligence or misconduct" by Berkowitz or his colleagues-as needed to constitute "cause" in this context. (Wiggins v Kopko, 105 A.D.3d 1132, 1134 [3d Dept 2013].)
Gallet Dreyer is entitled to a charging lien for the reasonable value of its services. That amount includes "amounts for legal fees and costs incurred... in prosecuting [a] claim for an award of an attorney's fee, or so called 'fees on fees,'" because fees on fees were provided for in Berkowitz's original retainer agreement with plaintiff, as required. (IG Second Generation Partners, L.P. v Kaygreen Realty Co., 114 A.D.3d 641, 643 [2d Dept 2014].) Although plaintiff contends that Gallet Dreyer seeks excessive amounts in fees on fees, given the hotly contested nature of this motion this court disagrees.
This court further concludes, based on the evidence introduced at the fee hearing, that Gallet Dreyer attorneys performed the work for which the firm now seeks payment, that neither Berkowitz nor his associates performed excessive work on the file, and that their qualifications and experience entitle them to charge for their services at the hourly rates underlying the fees claimed. On the hearing record, Berkowitz and his associates earned a total fee of $56,088.97 (including disbursements); and that plaintiff has already paid $21,358.18 of that sum. Gallet Dreyer is therefore entitled to a charging lien on $34,748.79 of plaintiff's recovery from defendant.
Plaintiff previously moved for entry of judgment in its favor for the outstanding balance on the amount that this court had found was owed her by defendant coop (mot seq 014). This court granted that motion in March 2022, holding that plaintiff was entitled to a judgment in the amount of $48,585.64. (See NYSCEF No. 282.) But the court stayed entry of judgment on that amount, given the pendency of this motion. Given this court's resolution of this motion, that outstanding $48,585.64 must be reduced to $13,836.85.
Accordingly, it is
ORDERED that this court's March 2022 order on Gallet Dreyer's motion (mot seq 013) is amended to grant the motion as set forth above (not merely to direct a hearing on the motion); and it is further
ORDERED based on the hearing record on this motion (mot seq 013) that Gallet Dreyer is entitled to a charging lien in the amount of $34,748.79; and it is further
ORDERED that this court's March 2022 order on plaintiff's motion for award of a money judgment (mot seq 014), which awarded plaintiff a judgment against defendant coop in the amount of $48,585.64, is amended to reflect a judgment amount of $13,836.85; and it is further
ORDERED that within 30 days of entry of this order, defendant coop shall pay to Gallet Dreyer (either directly or through defendant's current counsel) the sum of $34,748.79; and it is further
ORDERED that Gallet Dreyer serve a copy of this order with notice of entry on all parties to this action, on plaintiff's current counsel, and on the office of the County Clerk, which shall enter judgment accordingly.