Silva v Orfao

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Silva v Orfao 2012 NY Slip Op 30378(U) February 3, 2012 Sup Ct, Nassau County Docket Number: 16427/09 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRIAL/IAS PART 31 -NASSAU COUNTY JOAO SILVA , as Executor of the Estate of LEONOR SILVA LEONOR SILVA , Individually and MARIA GOMES , as Trustee for the JOAN SILVA TRUST Index No. : 16427/09 Motion Seq. No. : 05 Motion Date: 12/21/11 Plaintiffs - against - ALMIRA ORF AO alkla ALMIRA ROCHA Defendant. The following papers have been read on this motion: Papers Numbered Notice of Motion. Affrmation with Combined Memorandum of Affidavit and Exhibits Affirmation in Opposition and Exhibits Reply Affirmation Law. Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiffs ' curent attorneys move for an order determining and extinguishing the fee claims of plaintiffs ' former attorneys and for imposition of sanctions and attorneys fees incured by plaintiffs. Plaintiffs former attorneys , Horowitz , Tanenbaum & Silver , PC (" HTS" ), oppose the motion. The mother of plaintiff Joao Silva was kiled April 8 , in a two vehicle automobile accident on 2008. The decedent was a passenger in a vehicle driven by an aunt , defendant Almira Orfao alkla Almira Rocha. Plaintiff Joao Silva signed a retainer agreement , dated April 1 0 , 2008 ," [* 2] with HTS for all puroses in connection with injuries and damages " arising out of the accident. HTS had obtained offers of settlement from the two insurance carriers of the two drivers involved in the accident , when it discovered that plaintiff Joao Silva had retained Grunwald & Seman PC. , plaintiffs ' curent attorneys. Plaintiff Joao Silva avers that , when HTS refused to commence a wrongful death action he discharged them during a telephone conversation in late Februar or early March of2009. HTS corresponded with plaintiff Joao Silva in March and April of 2009 , advising him ofthe settlement offers in the total amount of $57 500. 00 and their attorneys ' lien on that amount. Plaintiffs ' current attorneys commenced this action against plaintiff Joao Silva s aunt defendant Almira Orfao aIa Almira Rocha , in August , 2009 , and , in March , 2010 , commenced a second action against the other vehicle s driver. Plaintiffs ' current attorneys filed and perfected a pre-judgment order of attachment herein , attaching defendant Almira Orfao alkla Almira Rocha sban account in the amount of $15 052. 06. HTS sought leave to intervene herein , but this relief was denied by this Cour s order dated May 10 2010. Plaintiffs ' current attorneys allege that the Cour left open the question of the existence of an attorney fee lien in favor of HTS and they seek relief now on the grounds that the continued assertion by HTS of a fee lien hampers the receipt of the wrongful death settlement proceeds. They argue that HTS was discharged for cause and should be sanctioned for continuing to improperly assert their attorney fee lien. HTS insists that they were not discharged for cause and that the offers of settlement for the proceeds of the two insurance policies were obtained solely through the efforts of their firm legal services. They further claim plaintiff Joao Silva was unrealistic about his expectations and that their advice to plaintiff Joao Silva was the "most appropriate. in Opposition J. HTS retains possession of their fie See HTS' s Silver Affirmation on the settlements. HTS was never the [* 3] attorney of record in either action. Pursuant to New York law , a client may discharge an attorney at anytime , with or without cause. v. See Lai Ling Cheng Modansky Leasing Co. 73 N. Y.2d 454 541 N. 2d 742 (1989). Where an attorney is discharged for cause , the attorney is not entitled to compensation or a lien notwithstanding a specific retainer agreement. Y.2d 38 See Campagnola 556 N. Y.S. 2d 239 (1990); Y.S. 2d 472 (2d Dept. 2008); v. Roe , 76 Mulholland, Minion Alami v. Volkswagen of America, Inc. 51 A.D. 3d 952 859 Callaghan v. Callaghan 48 A.D. 3d 500 , 852 N. Y.S.2d 273 (2d Dept. 2008). Where the discharge is without cause , an attorney has three remedies: (1) a retaining lien against the client's papers and files until all outstanding fees are paid; (2) a charging lien against quantum meruit. See any judgment or settlement in favor of the client; (3) a plenary action in Shoot v. City of New York 302 AD. 2d 183 , 754 Schneider, Klein ick, Weitz, Damashek Y.S. 2d 220 (1 st Dept. 2002). See also Wankel v. Spodek 1 AD. 3d 260 Dept. 2003). These remedies are not exclusive , but cumulative. See id. 50 , 717 N. S.2d 429 (1 A motion to resolve a fee See Costello v. Kiaer 278 dispute raises the issues of both a retaining lien and a charging lien. AD. 2d 76iN. S.2d 560 (1 st Dept. 2000). The common- law retaining lien secures the attorney s right to the reasonable value of the services rendered based upon the attorney Modansky Leasing Co. , supra (2d Dept. 2004); at 458; s retention of the file. See Lai Ling Cheng Lelekakis v. Kamamis 8 AD. 3d 630 , 778 N. Y.S.2d 904 Eighteen Associates, LLC v. Nanjim Leasing Corp. 297 AD. 2d 358 , 746 2d 599 (2d Dept. 2002). The statutory charging lien , pursuant to Judiciary Law 475 requires that the attorney establish that he was at some point the attorney of record. Rodriguez v. City of New York 66 N. Y.2d 825 , 498 N. Y.S.2d 351 (1985); See Russell v. Zaccaria AD. 3d 255 , 777 N. Y.S. 2d 325 (2d Dept. 2004). The filing ofa retainer agreement with the ,. [* 4] Office of Court Administration does not constitute an appearance in a legal proceeding sufficient See Wahba v. Parmar 1 AD. 3d 507 , 767 N. Y.S. to make him or her anattorney of record. 247 (2d Dept. 2003). Where the attorney has been discharged before a lawsuit has been commenced , the attorney is limited to recovering in the reasonable value of the services rendered. quantum meruit See Picciolo v. State 287 AD.2d 721 , 732 N. 2d 60 (2d Dept. 2001). In deciding the reasonable value of the services rendered , the Court should consider evidence of the time and skil required , the complexity of the matter , the attorney s experience , ability and reputation , the client's benefit from the services and the fee usually charged by other attorneys for similar services. See Callaghan v. Callaghan , supra fee dispute , there is no need for a plenar at 501. Where the Court retains jurisdiction over a action. See Russo v. City of New York 48 A. 3d 540 853 N. Y.S.2d 87 (2d Dept. 2008). A client's " dissatisfaction with reasonable strategic choices regarding litigation " does not as a matter of law, constitute cause for the discharge of an attorney. Partners, LLP 90 A. D.3d 696 , 934 N. Y.S. supra Doviak v. Finkelstein & Callaghan v. Callaghan 2d 467 (2d Dept. 2011); at 501. A hearing is generally required to determine whether a client has cause to discharge an attorney. 853 N. See Matter of Callan 2d 560 (2d Dept. 2008), Byrnes LLP v. Ruth E. Bernstein Law Firm 48 AD. 3d 459 lvapp. den. 10 N. Y.3d 711 860 N. Y.S. 2d 483 (2008); v. Leblond 25 AD. 3d 640 811 N. Y.S. 2d 681 (2d Dept. 2006); 528 563 N. Y.S. 2d 88 (2d Dept. 1990); (2d Dept. 1989); Doviak v. Finkelstein Andreiev Katsaros v. Katsaros 152 A. v. Byrne Keller 168 AD. 2d 539 , 543 N. Y.S.2d 478 Partners, LLP, supra; Alami v. Volkswagen of America, Inc. , supra; Costello v. Kiaer , supra. Application of the foregoing principles of law to the facts herein mandates the conclusion that a hearing is waranted to determine whether HTS was discharged with or without cause. If '0 -the 9jscharge was with cause , attorneys ' fe the hearing shall continue on the issue of the must b. quantum meruit eni q. If t Qi. h,arg jyIth.Q.':t cause value of the services rendered by .-. [* 5] HIS prior to discharge in obtaining the settlement proceeds. Based on the foregoing, the instant motion is hereby GRANTED to the extent that a hearing is ordered before a court attorney/referee in accordance with this decision. Said hearing is to be held before the Calendar Control Part (CCP) at 9:30 a. m. on the 3 day of April , 2012. Plaintiffs ' curent attorneys shall file a Note ofIssue on or before March 19 2012. A copy of this Order shall be served upon the County Clerk when the Note ofIssue is filed. Failure to fie a Note ofIssue or appear as directed shall be deemed an abandonment of the claim giving rise to the Hearing. A copy of this Order shall be served upon plaintiffs March 19 former attorneys by 2012. On this record , the Court finds no basis for sanctions and the portion of plaintiffs ' current attorney s motion that requested such relief is hereby DENIED. This constitutes the Decision and Order of this Cour. / DENISE L. SHER, A. Dated: Mineola, New York Februar 3 2012 ENTERED FEB 07 2012 NASSAU COUNTY COUTY CLIRK' I OFFtCE

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