Pettiford v. City of Yonkers

BRIAN D. PETTIFORD, Plaintiff, v. THE CITY OF YONKERS, YONKERS POLICE OFFICER VINNIE DEVITO,YONKERS POLICE OFFICER ALEX DELLADONNA,YONKERS POLICE OFFICER PETER SCHWARTZ,YONKERS POLICE OFFICER DENNIS MOLINA #646,YONKERS POLICE OFFICER CHRISTIAN KOCH #699,ALL DEFENDANTS INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIESAS EMPLOYEES OF THE CITY OF YONKERS, Defendants.

14 Civ. 6271 (JCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 20, 2020

ORDER

Brian D. Pettiford ("Pettiford" or "Plaintiff") commenced this civil rights action pro se pursuant to 42 U.S.C. § 1983 on August 1, 2014. (Docket No. 1). From March 2016 to November 2016, Paula Johnson Kelly, Esq. ("Ms. Kelly") represented Plaintiff in this matter. On December 7, 2016, Ms. Kelly's motion to withdraw as counsel was granted. (Docket No. 55). The case was subsequently dismissed on September 7, 2017 for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. (Docket No. 60). On July 10, 2018, the case was reopened. (Docket No. 67). Shortly thereafter, Elias J. Sayegh, Esq. appeared on behalf of Plaintiff. (Docket No. 74). Ms. Kelly now seeks: (1) attorney's fees under a theory of quantum meruit plus costs, and (2) a charging lien pursuant to N.Y. Judiciary Law § 475. (Docket Nos. 120, 121, 122). Plaintiff opposes the motion. (Docket Nos. 142, 143). Ms. Kelly filed a reply in further support of her motion. (Docket Nos. 145, 146). For the reasons that follow, the motion is granted in part and denied in part.

I. BACKGROUND¹

Plaintiff's pro se complaint sets forth claims of illegal search, false arrest, malicious prosecution, and wrongful conviction. (Docket No. 1). Plaintiff initially contacted Ms. Kelly on February 9, 2016. (Docket 122 ¶ 3). Thereafter, Ms. Kelly conducted research into Plaintiff's claims and consulted with Plaintiff concerning conferences and discovery matters. (Id.). Plaintiff formally retained Ms. Kelly on March 22, 2016 to represent him in the instant litigation, pursuant to a retainer agreement (the "Retainer Agreement"). (Id. ¶ 4).

The Retainer Agreement states under "Client's Rights and Responsibilities":

You understand that your failure timely to pay costs or fees when billed, your failure to communicate and/or cooperate with us during the negotiations or litigation, or your failure to provide us with complete and truthful information, will be grounds for our Firm to withdraw from representing you [sic] interest in this matter.

(Docket No. 122 ¶ 4).

The Retainer Agreement also provides that if there is a recovery, attorney's fees for negotiation and litigation were to be provided on a contingent fee basis of "33.33% of any and all net amounts recovered and economic benefits received" instead of paying Ms. Kelly's hourly rate, which was $400 per hour. (Id. ¶ 5). It further states that the firm's invoices "will be rendered monthly and payment is due within fifteen (15) calendar days of the date of the invoice." (Id. ¶ 6). Furthermore, the Retainer Agreement contains a "Discharge of Attorney" provision, stating:

You have the right to terminate our services at any time upon written notice to us. Unless we are discharged for failure to perform the services agreed upon, we shall be entitled to the full fee specific in the section on FEES and LIENS, plus the reimbursement of any unpaid expenses. At our option, upondischarge, we shall be entitled to our regular hourly rates as set forth above instead of a percentage.

(Id. ¶ 7).

On November 28, 2016, Ms. Kelly filed a notice of motion to withdraw as counsel, (Docket No. 53), on the grounds that Plaintiff breached the Retainer Agreement and failed to communicate or cooperate with Ms. Kelly, as well as failed to make the payments under the Retainer Agreement. (Docket 122 ¶¶ 11, 13). On December 7, 2016, Ms. Kelly's motion to withdraw was granted. (Docket No. 55). Ms. Kelly now seeks: (1) an award for attorney's fees in quantum meruit in the amount of $42,955.00, reflecting (a) $40,240.00 for 100 hours and 36 minutes worked at an hourly rate of $400, and (b) the $2,715.00 balance of the initial retainer fee; (2) reimbursements for disbursements incurred in the amount of $2,083.64; (3) interest of 1.5% per month and 18% per annum on the past due unpaid amounts; totaling $2,346.92, and (4) a charging lien for attorney's fees pursuant to N.Y. Judiciary Law § 475. (Docket Nos. 121,² 122). Plaintiff opposes the motion on the grounds that: (1) the amounts of attorney's fees in quantum meruit and of a charging lien are determinations to be made by the Court at an evidentiary hearing, and (2) Ms. Kelly's demanded fees are neither fair nor reasonable. (Docket No. 143).

II. DISCUSSION

New York law generally recognizes three remedies for an attorney making a fee claim against a former client: (1) a charging lien, (2) a retaining lien, and (3) a plenary action in quantum meruit. See Bonnaig v. Nunez, No. 12 Civ. 1853(HB), 2012 WL 6200977, at *3 (S.D.N.Y. Dec. 11, 2012), aff'd, 546 F. App'x 55 (2d Cir. 2013); Milner v. City of New York, No.10 Civ. 9384(JGK)(GWG), 2012 WL 3138110, at *10 (S.D.N.Y. Aug. 2, 2012), report and recommendation adopted, 2012 WL 6097111 (S.D.N.Y. Dec. 10, 2012). The remedies are not exclusive, but cumulative. Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 219 (1st Dep't 1997). Here, Ms. Kelly seeks two of these remedies: (1) a charging lien, and (2) a judgment of attorney's fees in quantum meruit for legal services rendered and disbursements incurred, plus costs and interest. (Docket No. 121 at 5). The Court will address each in turn.

A. Charging Lien

"Under New York law, an attorney who is discharged is statutorily entitled to a charging lien on any monetary recoveries obtained by the former client in the proceedings in which the attorney had rendered legal services." Stair v. Calhoun, 722 F. Supp. 2d 258, 267 (E.D.N.Y. 2010); see also N.Y. Jud. Law § 475. Section 475 provides, in pertinent part:

[f]rom the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department ... the attorney who appears for a party has a lien upon his or her client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client's favor, and the proceeds thereof in whatever hands they may come ... The court upon the petition of the client or attorney may determine and enforce the lien.

N.Y. Jud. Law § 475. New York charging liens are "enforceable in federal courts in accordance with its interpretation by New York courts." Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 449 (2d Cir. 1998) (internal quotations omitted). The statutory charging lien "is a device to protect counsel against 'the knavery of his client,' whereby through his effort, the attorney acquires an interest in the client's cause of action." Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 177 (2d Cir. 2001) (quoting In re City of New York, 5 N.Y.2d 300, 307 (1959)). "[T]he New York cases make clear that the charging lien provided for by Section 475 isfor the benefit of an 'attorney of record' only." Itar-Tass, 140 F.3d at 450. "[A]n attorney may be considered 'of record,' and thus entitled to a charging lien, 'by [1] participating in a legal proceeding on the client's behalf or [2] by having his [or her] name affixed to the pleadings, motions, records, briefs, or other papers submitted in the matter.'" Hampshire Grp. Ltd. v. Scott James Co., L.L.C., No. 14CV2637(JGK)(MHD), 2015 WL 5306232, at *5 (S.D.N.Y. July 27, 2015) (quoting Hoganwillig, PLLC v. Hendel, 126 A.D.3d 1311, 1311-12 (4th Dep't 2015) (citing cases) (internal quotations omitted)). The "charging lien attaches when an action is commenced[,]" Ross v. Mitsui Fudosan, Inc., No. 97 Civ. 0975(PKL), 1998 WL 556171, at *2 (S.D.N.Y. Sept. 1, 1998), and "by definition" attaches "to the proceeds obtained as a result of the action." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 149 (2d Cir. 1998). "A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client's cause of action." Antonmarchi v. Consol. Edison Co. of New York, 678 F. Supp. 2d 235, 240 (S.D.N.Y. 2010) (internal quotations and citations omitted).

"[I]n order to establish a lien under Section 475, 'there must be asserted a claim which can eventuate in there being proceeds payable to, or assets recoverable by, the client as a result of the efforts of the attorney.'" Rosewood Apartments Corp. v. Perpignano, No. 99 Civ. 4226(NRB), 2005 WL 1084396, at *3 (S.D.N.Y. May 5, 2005) (internal citations omitted). "[A]ttorneys who terminate their representation are [] entitled to enforce their charging liens, as long as the attorney does not withdraw without 'good cause' and is not discharged for 'good cause.'" Stair, 722 F. Supp. 2d at 267. Here, there is no dispute that Ms. Kelly was Plaintiff's attorney of record, (see Docket No. 26), and that she withdrew from the case and was not discharged for cause. See Stair, 722 F. Supp. 2d at 265 (noting that failure to pay legal fees is a "legitimate ground" for withdrawing from a case); Farmer v. Hyde Your Eyes Optical, Inc., 60 F.Supp. 3d 441, 445 (S.D.N.Y. 2014) ("Satisfactory reasons for withdrawal include 'a client's lack of cooperation, including lack of communication with counsel, and the existence of irreconcilable conflict between attorney and client.'") (quoting Naguib v. Pub. Health Solutions, No. 12-CV-2561(ENV)(LB), 2014 WL 2002824, at *1 (E.D.N.Y. May 15, 2014)). Accordingly, the Court finds that Ms. Kelly is entitled to a statutory charging lien.

A charging lien is equitable in nature, and the "overriding criterion for determining the amount of a charging lien is that it be 'fair.'" Sutton v. N.Y.C. Transit Aut., 462 F.3d 157, 161 (2d Cir. 2006) (internal citations omitted) see...