Analisa Salon, Ltd. v. Elide Props., LLC

153 A.D.3d 775

61 N.Y.S.3d 106

ANALISA SALON, LTD., doing business as Susan Marlowe Figure Salon, appellant,

v.ELIDE PROPERTIES, LLC, et al., defendants;

Carol W. Most, et al., nonparty-respondents. (Action No. 1).

Analisa Salon, Ltd., doing business as Susan Marlowe Figure Salon, appellant,

v.Constable Michael M. Seminara, et al., defendants;

Carol W. Most, et al., nonparty-respondents. (Action No. 2).

2015-04103. Index No. 19232/05. Index No. 7582/05.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 23, 2017.

Mark A. Guterman, White Plains, NY, for appellant.

Robinowitz Cohlan Dubow & Doherty LLP, White Plains, NY (Bruce Minkoff of counsel), for nonparty-respondent Carol W. Most, and Law Offices of Marcia E. Kusnetz, P.C., Rye Brook, NY, for nonparty-respondent Marcia E. Kusnetz (one brief filed).

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ANGELA G. IANNACCI, JJ.

In two related actions, inter alia, to recover damages for unlawful eviction and breach of a lease, and for specific performance of a right of first refusal contained in the lease, the plaintiff in Action Nos. 1 and 2 appeals from a judgment of the Supreme Court, Westchester County (Walker, J.), entered August 28, 2015, which, upon an order of the same court dated January 30, 2015, denying its motion to vacate a charging lien of its former attorneys, nonparties Carol W. Most and Marcia E. Kusnetz, and granting, without a hearing, the cross motion Of carOL W. most aNd marcIA e. Kusnetz to enforce the charging lien, is in favor of Carol W. Most and Marcia E. Kusnetz and against it in the principal sum of $227,105.08.

ORDERED that the judgment is affirmed, with costs.

"From the commencement of an action, ... the attorney who appears for a party has a lien upon his or her client's cause of action ... and the proceeds thereof" ( Judiciary Law § 475 ; see Tangredi v. Warsop, 110 A.D.3d 788, 972 N.Y.S.2d 657 ). This lien is created by operation of law and does not require notice to bring it into existence (see Matter of City of New York [United States of Am.–Coblentz], 5 N.Y.2d 300, 307, 184 N.Y.S.2d 585, 157 N.E.2d 587 ), and it attaches at the time the action is commenced (see Matter of Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 657, 602 N.Y.S.2d 788, 622 N.E.2d 288 ; Tangredi v. Warsop, 110 A.D.3d at 788, 972 N.Y.S.2d 657 ; Matter of Dresner v. State of New York, 242 A.D.2d 627, 628, 662 N.Y.S.2d 780 ).

"Where an attorney's representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien" ( Tangredi v. Warsop, 110 A.D.3d at 788, 972 N.Y.S.2d 657 [internal quotation marks omitted] ). However, an attorney who is discharged for cause is not entitled to compensation or a lien (see Maher v. Quality Bus Serv., LLC, 144 A.D.3d 990, 992, 42 N.Y.S.3d 43 ; CPMI, Inc. v. Kolaj, 137 A.D.3d 953, 955–956, 27 N.Y.S.3d 256 ; Doviak v. Finkelstein & Partners, LLP, 90 A.D.3d 696, 699, 934 N.Y.S.2d 467 ).

If there are conflicting claims regarding whether an attorney was discharged with or without cause, a hearing is required (see CPMI, Inc. v. Kolaj, 137 A.D.3d at 956, 27 N.Y.S.3d 256; Byrne v. Leblond, 25 A.D.3d 640, 642, 811 N.Y.S.2d 681 ). However, summary judgment is appropriate where the attorney...