Komlosi v Cuomo

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Komlosi v Cuomo 2012 NY Slip Op 30804(U) March 28, 2012 Supreme Court, New York County Docket Number: 115207/2009 Judge: Cynthia S. Kern 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. ANNED ON 313012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART Justlce Index Number : 11520712009 KOMLOSI, MARK INDEX NO. vs. CUOMO, ANDREW M. SEQUENCE NUMBER : 003 MOIION DATE MOTION SEQ. NO. OTHER RELIEFS , were h a d on thls motlon to/for The followlng papers, numbered 1 to Notlcs of MotionlOrder to Show Cause Anawering Affldavltn -Affldavltn - Exhlblts I Wd. IWS). I Ws). - Exhlblts Replylng Affldavim Upon the foregolng papem, it io ordered that thli motion Is 1s decided in accordance with the annexed decision. r I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRLATE: 3. CHECK IF APPROPRIATE: ........................... fi MOTION I : [7 GRANTED S ................................................ & NON-FINAL DISPOSITION CASE DISPOSED 0DENIED SEnLE ORDER DO NOT POST 0ORANTED IN PART 0OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] , For a Judgment Pursuant to Articles 78 and 30 of the Civil Practice Law and Rules, - -against- Andrew M.Cuomo, as Attorney General of the State of New York, NEW YORK STATE OFFICE OF RETARDATION AND DEVELOPMENTAL DISAB and Commissioner DIANA JONES MITER. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for : Papers Numbered Notice of Motion and Affidavits Annexed.................................... L Answering Afiidavits...................................................................... _2 Cross-Motion and Affidavits Annexed........................................... Answering Affidavits to Cross-Motion........................................... Replying Affidavits...................................................................... . 3 Exhibits,..................................................................................... 4 The law firm of Emery Celli Brinckerhoff & Abady LLP ( ECBA ) brought the instant motion for an order fixing a charging lien pursuant to Judiciary Law 5 475 against petitioner Mark Komlosi. As will be explained more fully below, the court grants ECBA s motion to the extent that it finds that ECBA is entitled to a charging lien but reserves the determination of the amount of attorneys fees awed to it until appeal of the action is resolved. The relevant facts are as follows. Komlosi retained ECBA to represent him in connection [* 3] wt an Article 78 petition seeking a declaratoryjudgment finding that the State of New York ih was obligated to indemnify Melanie Fundenberg, a New York State employee on a judgment Komlosi received against Fundenberg. The retainer limited the scope of ECBA s representation to an application for an Article 78 judgment, any appeal from the outcome of such application, and m y request under FOIL that ECBA deemed to be supportive of Komlosi s efforts. The retainer also provided that ECBA was to receive 30% of the gross amount of any recovery, settlement or judgment obtained on Komlosi s behalf if the litigation concluded in either the Supreme Court or the Appellate Division and 33% of the gross amount of any recovery, settlement or judgment if there was an appeal to the New York Court of Appeals. On November 13,2009, ECBA filed an Article 78 petition on Komlosi s behalf seeking an order annulling the State of New York s decision denying indemnification to Melanie Fudenberg on the judgment Komlosi received against her. On April 26,201 0, Justice Solomon granted Komlosi s petition rm a and declared that Fudenbcrg was entitled to indemnification f o the State and thus Komlosi w s entitled to payment. Judgment w s entered in favor of Komlosi on May 25,2010. The State a filed a notice of appeal on August 1 1, 2010. Komlosi s opposition brief was due on August 10, 201 1. D r n the t m leading up to the due date of the opposition brief, Komlosi and ECBA had uig ie some disagreements in opinion about case strategy as well as the most effective method of communication for the parties. By letter dated June 30, 201 1, Komlosi terminated ECBA s services. On July 28,201 1, petitioner filed a motion to withdraw as counsel in the First Department. That motion w s granted by the First Department on October 13,2011. ECBA a brought the instant motion seeking to fix a charging lien pursuant to Judiciary Law 6 475 against Komlosi for the services it performed under its agreement w t Komlosi. ih 2 [* 4] Judiciary Law 4 475 provides: From the commencementof an action, special or other proceeding in any court ... the attorney who appears for a party has a lien upon his client s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision,judgment or final order in his clients favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien. However, a client has an absolute right to discharge an attorney at my t h e . If the discharge is with cause, the attorney has no right to compensation or to a retaining lien. If the discharge is without cause before the completion of services, then the amount of the attorney s compensation must be determined on a quantum meruit basis. Telchner v W & J Holsteins, 65 N.Y .2d 977,979 (1 985). Cause requires a showing of impropriety or misconduct on the part of the attorney. See Simon v Unum Gr., No. 7 Civ. 11426,2010 WL 2541 145 at * 1 (S.D.N.Y.June 23,2010)(internal quotations omitted). In this regard, poor client relations, diffcrtnces of opinion, or personality conflicts do not amount to cause. Id.; see Callaghan v Callaghan, 48 A.D.3d 500 (2d Dept 2008)(stating that as a matter of law, dissatisfaction with reasonable strategic choices regarding litigation do not constitute cause for the discharge of an attorney). As a general matter, a hearing is required to determine if an attorney is discharged for akn cause or without cause before completion of his services. See H w i s v Lenox Hfll H o q , 138 A.D.2d 572 (2d h p t 1988). Although a hearing is generally held to determine whether the discharge was for cause, it is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue. Hawkins, 138 A.D.2d at 572. Therefore, in cases 3 [* 5] where the determination can be made based upon the papers, a hearing is not necessary to making a determination of whether the attorney w s discharged wt or without cause. See Braider v I94 a ih Riverside Owners Corp., 237 A.D.2d 147 (1 Dept 1997); Hawkins, 138 A.D.2d at 572. In Braider, the First Department overturned the lower court s ruling that a hearing w s a required to determine whether the outgoing counsel was discharged for cause and found that the outgoing counsel wm entitled to a charging lien based on the records. In coming to this conclusion, the First Department relied on the fact that the outgoing counsel provided a detailed accounting of his representation of plaintiffs while the plaintiffs allegations attempting to justify counsel s discharge [were] largely conclusory and bereft of detail. See Braider, 237 A.D.2d at 147. The court finds that ECBA was discharged without cause and is therefore entitled to a charging lien. A htaring is not required in the present case to determine whether ECBA w s a terminated for cause because the papers submitted do not raise a factual dispute on a material point which m s be resolved before the court can decide the legal issue of whether ECBA WELS ut terminated for cause. As in Braider, ECBA, the discharged counsel in the present action, has provided a detailed accounting of ita representation of Komlosi, In this regard, ECBA has provided evidence of numerous email exchanges between ECBA and Komlosi discussing and explaining its legal strategy as well as addressing Komlosi s questions about ECBA s strategy for his case. The amails also provided evidence of a difference in opinion regarding case strategy a between ECBA and Komlosi regarding whether Komlosi w s entitled to prejudgment interest and whether and how to pursue such interest. However, when there was evidence of a difference in opinion, ECBA provided a reasonable explanation of its position as well as advising Komlosi 4 [* 6] to come into ECBA s ofice in person to discuss any differences in opinion. Komlosi, on the other hand, has failed to provide any evidence of ECBA s misconduct or hpropriety. Komlosi s two main arguments in support of its position that ECBA was discharged for cause are that ECBA did not work on the papers in opposition to the State s appeal of the Article 78 determination to Komlosi s satisfaction and that ECBA w s incorrect in a its analysis of prejudgment interest owed to Komolsi. However, apart f o making conclusory rm assertions, Komlosi has failed to provide any evidence that ECBA s position regarding the prejudgment interest was incorrect or that the working draft of ECBA s opposition brief was inadequate or that ECBA w s untimely in the manner in which it completed the work. Further, a as evidenced in the email correspondence between ECBA and Komlosi, the time extensions requested to file the opposition papers were made at Komlosi s direction. In any event, even if Komlosi s assertions were true - which for the reasons discussed above are not - these assertions do not rise to the level of misconduct or impropriety. Moreover, it remains undisputed that ECBA was successful in obtaining a favorable judgment for Komlosi wt regard to his Article ih 78 petition, preserved his rights to collect interest on the judgment and was discharged before it submitted any papers on behalf of Komlosi in opposition to the State s appeal. For all of these reasons discussed above, the court finds that ECBA w s discharged without cause and entitled to a a charging lien on the proceeds of the lawsuit. However, the court finds that the determination of ECBA sfee which is to be recovered in quantum meruit shall be reserved until the final outcome of this action is determined at which time a more accurate assessment can be made as to the value of the services provided by ECBA. Finally,Komlosi s request that the entirety of the motion practice be reviewed in curneru [* 7] is denied as moot because Komlosi and ECBA have already had the opportunity to read and respond to each other s papers. However, the court grants Komlosi srequest that the motion papers submitted by the parties and this decision be sealed to anyone except Komlosi and ECBA. The court also grants Komlosi s request that the defendants in the underlying action be excused from any oral arguments or hearings pertaining to this motion. Accordingly, the court grants ECBA s motion to the extent that it finds that ECBA is entitled to a charging lien. The court reserves the determination of the amount of fees to be recovered by ECBA in quantum m r i until the resolution of the pending appeal before the First eut Department and any subsequent appeals. It is further ORDERED that the motion papers submitted by the parties and this decision be sealed to anyone except Komlosi and ECBA. This constitutes the decision and order of the court. 6

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