Sprole v. Sprole

151 A.D.3d 1405

58 N.Y.S.3d 646

Robert R. SPROLE III, Respondent,

v.Linda S. SPROLE, Appellant.

Richard B. Alderman, Respondent.

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

June 22, 2017.

Linda S. Sprole, Ithaca, appellant pro se.

D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), for Robert R. Sprole III, respondent.

Alderman and Alderman, Syracuse (Richard B. Alderman of counsel), respondent pro se.

Before: GARRY, J.P., LYNCH, ROSE and AARONS, JJ.

LYNCH, J.

Appeals from three orders of the Supreme Court (Ames, J.), entered January 4, 2016, March 7, 2016 and March 22, 2016 in Tompkins County, which, among other things, denied defendant's cross motion to dismiss Richard B. Alderman's motion for a charging lien.

This matrimonial action has been before the Court on several prior occasions (see 148 A.D.3d 1337, 50 N.Y.S.3d 178 [2017], 145 A.D.3d 1367, 45 N.Y.S.3d 233 [2016] ). After a judgment of divorce was granted in September 2015, Richard B. Alderman, who represented defendant (hereinafter the wife) in the divorce action from September 2011 until his discharge on June 10, 2015, moved to secure a charging lien. The wife cross-moved to dismiss the application. In a January 2016 order, Supreme Court rejected the wife's cross motion but allotted her additional time to detail any objections to the billings. Following further submissions, by order entered March 7, 2016, the court rejected the wife's challenges to Alderman's billings before his discharge, but found that she was entitled to a hearing on the post-discharge billings.

Alderman then withdrew his claim for any post-discharge billings. The court, in turn, found that a hearing was unnecessary and, by order entered March 22, 2016, granted Alderman's request for a charging lien in the principal sum of $52,173.43. The court directed that the award was enforceable against the wife's equitable distribution award and ordered that a $2,200 check that plaintiff had issued to the wife as her share of credit card points be reissued by plaintiff to Alderman. The wife appeals all three orders.¹

Initially, for the reasons set forth in our companion decision, we reject the wife's contentions that the court lacked jurisdiction and should have recused itself ( Sprole v. Sprole, 151 A.D.3d 1413, 54 N.Y.S.3d 339 [decided herewith] ). We similarly conclude that Alderman was entitled to assert a charging lien (id. ).

The wife maintains that she discharged Alderman for cause and that Supreme Court erred in disregarding evidence of what she describes as "misconduct, negligence, fraud, civil distortion and crimes." When discharged "for cause," an "attorney has no right to compensation or to a retaining lien" ( Teichner v. W & J Holsteins, 64 N.Y.2d 977, 979, 489 N.Y.S.2d 36, 478 N.E.2d 177 [1985] ). "A ‘for cause’ termination must be based on more than a client's general dissatisfaction with the attorney's performance and typically involves a significant breach of legal duty such that the client can establish that the attorney's conduct constituted a failure to properly represent the client's interests" ( Doviak v. Lowe's Home Ctrs., Inc., 134 A.D.3d 1324, 1326, 21 N.Y.S.3d 754 [2015] [internal quotation marks, brackets and citations omitted], lv. denied 27 N.Y.3d 904, 2016 WL 1739439 [2016] ). Upon our review, we find the wife's argument without merit.

To begin, it is worth noting that the wife's June 10, 2015 note discharging Alderman makes no claim of misconduct, explains that his representation is no longer needed because the case is "now closed" and concludes by thanking him for his services. Focusing on the fact that her retainer agreement was signed by David Tamber, an attorney in the law firm of Alderman and Alderman, the wife contends that Alderman lacked authority to assert a retaining lien against the file and goes so far as to characterize Alderman's conduct as fraudulent. Recognizing that the wife is proceeding pro se, we nonetheless must characterize such accusations as unwarranted. The wife signed a retainer agreement with the law firm of Alderman and Alderman, which identified Alderman as a member of the firm and detailed his fee rates. There is no real dispute that Alderman appeared as counsel on the wife's behalf and, as such, he was entitled to assert a retaining lien on the file after his discharge (see D'Ambrosio v. Racanelli, 129 A.D.3d 900, 901, 12 N.Y.S.3d 176 [2015] ). Further, having moved within this action to secure a charging lien pursuant to Judiciary Law § 475, Alderman was not bound by the arbitration notice provisions of 22 NYCRR 137.6(b).² Nor is there any indication on the record that the wife disputed the reasonableness of Alderman's fees before he applied for a charging lien. While the wife complains that Alderman withdrew an appeal of a temporary custody order, the final...