| Uni-Rty Corp. v New York Guangdong Fin., Inc. |
| 2015 NY Slip Op 01758 |
| Decided on March 3, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 3, 2015
Acosta, J.P., Andrias, Saxe, DeGrasse, Richter, JJ.
14410 157621/12
v
New York Guangdong Finance, Inc., et al., Respondents. Russ & Russ, P.C., Nonparty Respondent.
Stuart D. Root, Livingston Manor, for appellants.
Russ & Russ, P.C., Massapequa (Jay Edmond Russ of counsel), for respondent.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered October 28, 2013, which, insofar as appealed from, granted nonparty Russ & Russ P.C. (petitioners' former counsel) a charging lien pursuant to Judiciary Law § 475, and referred determination of the amount of the lien to a Special Referee, unanimously modified, on the law and the facts, to refer the matter to a Special Referee to determine whether Russ & Russ was entitled to enforce its charging lien, and, if the Referee determines that Russ & Russ was so entitled, to determine the amount of the lien, and otherwise affirmed, without costs.
Petitioners contend that a motion for a charging lien is subject to the same standards as a motion for summary judgment. This argument is based on the fact that the last sentence of Judiciary Law § 475 says, "The court upon the petition of the client or attorney may determine and enforce the lien" (emphasis added). Petitioners note that a petition is a pleading in a special proceeding (see CPLR 402) and that "a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment" (Karr v Black, 55 AD3d 82, 86 [1st Dept 2008], lv denied 11 NY3d 712 [2008]). However, "Judiciary Law § 475 . . . permits enforcement of the lien either by way of motion in the main action or by plenary action" (Miller v Kassatly, 216 AD2d 260, 261 [1st Dept 1995]). Since Russ & Russ was not required to bring a special proceeding, its motion for a charging lien was not subject to the same standards as a motion for summary judgment.
"[W]here an attorney's representation terminates and there has been . . . no unjustified abandonment by the attorney, the attorney's right to enforce the statutory charging lien is preserved" (Klein v Eubank, 87 NY2d 459, 464 [1996]). In the instant proceeding, as in Klein, there is a dispute about whether the attorney abandoned his client. Therefore, "a hearing should be held on the question of [the former attorney's] entitlement to enforcement of his statutory charging lien" (id.).
"[D]etermination and enforcement of a charging lien" is "an equitable claim triable by the court" (Grutman Katz Greene & Humphrey v Goldman, 251 AD2d 7, 7 [1st Dept 1998]; see also [*2]Matter of King, 168 NY 53, 58-59 [1901]). Hence, the IAS court had the power to appoint a referee (see King, 168 NY at 58). Matter of Jacob D. Fuchsberg Law Firm v Danzig (248 AD2d 178 [1st Dept 1998]) is not to the contrary, as that case involved a "dispute between attorneys over the sharing of contingency fees" (id. at 179) and had been converted into a plenary action for breach of contract (id. at 178-179).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 3, 2015
CLERK