American Stevedoring, Inc. v Red Hook Container Term., LLC

American Stevedoring, Inc. v Red Hook Container Term., LLC 2015 NY Slip Op 08791 Decided on December 1, 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 December 1, 2015
Mazzarelli, J.P., Moskowitz, Richter, Manzanet-Daniels, JJ.
16262N 651472/12

[*1] American Stevedoring, Inc., Plaintiff-Respondent,

v

Red Hook Container Terminal, LLC, et al., Defendants, The Alex N. Sill Company, Nominal Defendant. Hiller, PC, Nonparty Appellant. [And a Third-Party Action]

Hiller, PC, New York (Michael S. Hiller of counsel), for appellant.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered May 29, 2015, which, inter alia, directed nonparty Hiller, PC (HPC), plaintiff's former counsel, to turn over its litigation file within 10 days of the date of the order, unanimously reversed, on the law, without costs, and that part of the order vacated.

The court erred in requiring HPC to turn over its litigation file, on which HPC had a retaining lien, without first ensuring that payment for HPC's legal services was made or secured, and in

the absence of any waiver or exigent circumstances (see Wankel v Spodek, 1 AD3d 260 [1st Dept 2003]; Schneider, Kleinick, Weitz, Damashek & Shoot v City of New York, 302 AD2d 183, 186-187 [1st Dept 2002]; Corby v Citibank, 143 AD2d 587, 588 [1st Dept 1988]). The court also erred in not directing plaintiff, as the former client, to bear the costs of reproduction and delivery of the file (see Matter of Sage Realty Corp. v Proskauer Rose Goetz & Mendelsohn, 91 NY2d 30, 38 [1997]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2015

CLERK