Tucker v. Schwartzapfel Lawyers, P.C.

196 A.D.3d 527

150 N.Y.S.3d 326

John TUCKER, appellant-respondent,

v.SCHWARTZAPFEL LAWYERS, P.C., etc., et al., defendants;

Greenberg & Wilner, LLP, nonparty-respondent-appellant.

(Action No. 1)

Richard Sabatino, appellant-Respondent,

v.Schwartzapfel Lawyers, P.C., etc., et al., defendants;

Greenberg & Wilner, LLP, nonparty-respondent-appellant.

(Action No. 2)

2018–14611

Index Nos. 601645/13, 601646/13

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

Argued—April 13, 2021

July 7, 2021

Kaplan Layers P.C., Syosset, N.Y. (Adam N. Lepzelter and Lisa Gioia Fallah of counsel), for appellants-respondents in Action Nos. 1 and 2.

Greenberg & Wilner, LLP, New York, N.Y. (Harvey L. Greenberg of counsel), for nonparty-respondent-appellant.

REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In related actions, inter alia, to recover damages for breach of contract, which were joined for trial, the plaintiffs in Action Nos. 1 and 2 appeal, and nonparty Greenberg & Wilner, LLP, cross-appeals, from an order of the Supreme Court, Nassau County (Roy S. Mahon), entered December 5, 2018. The order, insofar as appealed from, after a hearing, denied the plaintiffs’ motion pursuant to Judiciary Law § 475 to quash an alleged attorney charging lien in favor of nonparty Greenberg & Wilner, LLP, and granted those branches of the cross motion of nonparty Greenberg & Wilner, LLP, which were pursuant to Judiciary Law § 475 to impose an attorney charging lien on the proceeds of these actions and for an award of 95% of a contingency fee. The order, insofar as cross-appealed from, after a hearing, in effect, denied that branch of the cross motion of nonparty Greenberg & Wilner, LLP, which was for an award in the amount it expended for disbursements representing the plaintiffs.

ORDERED that the order is affirmed insofar as appealed from; and it is further, ORDERED that the order is reversed insofar as cross-appealed from, on the facts and in the exercise of discretion, and that branch of the cross motion of nonparty Greenberg & Wilner, LLP, which was for an award in the amount it expended for disbursements representing the plaintiffs is granted; and it is further,

ORDERED that one bill of costs is awarded to nonparty-respondent-appellant.

In May 2013, the plaintiffs in these related actions retained nonparty Greenberg & Wilner, LLP (hereinafter Greenberg), to represent them, inter alia, to recover damages for breach of contract against their former employer. The plaintiffs each entered into a separate retainer agreement pursuant to which they each agreed to pay Greenberg a contingency fee of 35% of the sum recovered, plus disbursements. In January 2018, after the matters were scheduled for trial, Greenberg moved for leave to withdraw as the plaintiffs’ counsel based upon undisclosed "irreconcilable differences." The motion was granted unopposed. Greenberg requested that the matter be adjourned to allow the plaintiffs an opportunity to obtain new counsel. In March 2018, the plaintiffs retained the services of new counsel for an hourly fee. After one day of trial, the actions were settled for an undisclosed amount. Thereafter, the plaintiffs moved pursuant to Judiciary Law § 475 to quash an attorney charging lien in favor of Greenberg, and Greenberg cross-moved pursuant to Judiciary Law § 475 to impose an attorney charging lien on the proceeds of these actions, for an award of 95% of the contingency fee, and for an award in the amount it expended for disbursements representing the plaintiffs in these actions. The Supreme Court, after hearing, denied the plaintiffs’ motion and granted those branches of Greenberg's cross motion which were for the imposition of a charging lien and an award of 95% of the contingency fee.

"In reviewing a determination made after a hearing, this Court's authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses" ( Wells Fargo Bank, NA v. Burshstein, 172 A.D.3d 1436, 1437, 99 N.Y.S.3d 635 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Everhome Mtge. Co. v. Berger, 151 A.D.3d 811, 812, 56 N.Y.S.3d 548 ).

Pursuant to Judiciary Law § 475, an attorney who appears for a party has a lien upon his or her client's cause of action. "It has long been held that attorneys who terminate their representation for just cause continue to be entitled to enforce their liens" ( Klein v. Eubank, 87 N.Y.2d 459, 462, 640 N.Y.S.2d 443, 663 N.E.2d 599 ). However, where an attorney withdraws without good cause, his or her lien is automatically forfeited (see id. at 462–463, 640 N.Y.S.2d 443, 663 N.E.2d 599 ; Lansky v. Easow, 304 A.D.2d 533, 534, 756 N.Y.S.2d 885 ). Here, the plaintiffs’ contention that Greenberg withdrew without sufficient cause is not supported by the record. The evidence at the hearing demonstrated that Greenberg's request to withdraw was based on irreconcilable differences regarding the appropriate course to...