Dilluvio v Gt Assoc.
Annotate this CaseDecided on September 29, 2004
Supreme Court, Nassau County
CHARLES DILLUVIO, Plaintiff,
against
GT ASSOCIATES, GERRY BURNS, MARIE BURNS, LEONARD THOUBBURON, AND GERRARD THOUBBURON, Defendants.
9714-02
COUNSEL FOR PLAINTIFF
Steven Cohn, P.C.
1 Old Country Road - Suite 497
Carle Place, New York 11514
Leonard B. Austin, J.
BACKGROUND
Plaintiff's primary purpose in pursuit of this litigation is the return of stock certificate MC1622 representing 1.3 million shares in a corporation known as Media
Communications Group, Inc. ("MCGI") which is now known as Tiger Telematics, Inc.
Without belaboring the tortured history of this matter, suffice it to say that, on February 19, 2004, Plaintiff's motion for summary judgment was submitted to this Court without opposition. While the motion was sub judice, on April 1, 2004, Defendants Marie Burns and Leonard Thoububron appeared in court to inquire with regard to the status of the matter. Ms. Burns and Mr. Thoububron were pro se inasmuch as by Order granted on September 29, 2003, the firm of Rubin and Purcell, LLP ("R & P") was granted leave to withdraw as counsel for Defendants. David Rubin, Esq., who had been handling the matter for Defendants, was no longer involved in the litigation.
Based on their appearance, the motion was adjourned to April 9, 2004 to afford them the opportunity to oppose the motion. They never availed themselves of that opportunity. Instead, on the very same day that Ms. Burns and Mr. Thoububron came to court to inquire with regard to their case, they apparently went to Mr. Rubin's office and delivered stock certificate MC1622 to Mr. Rubin. In a letter dated April 1, 2004, and obviously prepared by Mr. Rubin's office, Mr. Thoububron wrote:
Dear Mr. Rubin:
Based upon the dispute regarding the Floor Decor Inc. stock, share Certificate MC.1622 which you had been holding and had released to me, I am redepositing same with you so that your attorney's retaining agreement reattaches thereto with full force and effect.
Very truly yours,
s/___________________
LEONARD THOUBURON
(Emphasis added.)
Based upon said letter, R & P now asserts that, despite this Court having granted summary judgment on June 9, 2004 without opposition and this Court having granted leave for R & P to withdraw on September 29, 2003, it has a retaining lien with regard to that stock. It does so notwithstanding the second decretal paragraph of the Order of June 9, 2004 which provides that Plaintiff was declared to be "entitled to all right, title, interest and ownership in the stock certificates MCGI . . ."
Plaintiff now seeks a turnover of the stock certificate which R & P not the Defendants resists.
DISCUSSION
[*2]
An attorney who appears in an action has a lien on his client's cause of action, claim or counterclaim which attaches to any favorable verdict, judgment or result in his client's favor. Judiciary Law § 475. Such lien is recognized as applying to a client's papers that come into the attorney's possession during the course of the attorney's representation of the client. See, Pomerantz v. Schandler, 704 F.2d 681 (2nd Cir. 1983); and In re San Juan Gold, Inc., 96 F.2d 60 (2nd Cir. 1938). Such rule is recognized in other states as well. See, e.g., Tolman v. Banach, 82 Conn. App. 263 (2004); and Wintter v. Fabber, 618 So. 2d 375 (Fla. Ct. App., 1993).
Here, the attorney-client relationship between R & P and Defendants terminated by Order of this Court granted on September 29, 2003. Having relinquished possession of the stock certificate at some point prior to April 1, 2004, R & P's retaining lien if it
had one at all did not revive upon the stock certificate returning to its possession. Inasmuch as it was no longer the attorney of record for Defendants, R & P was no longer covered or protected by Judiciary Law § 475.
Indeed, R & P is not entitled to a retaining lien inasmuch as its erstwhile client's causes of action, claim or counterclaim did not, as required under Judiciary Law § 475, result in a verdict, report, determination, decision, judgment or final order "in [its] clients favor" (Emphasis added). Here, delivery of the stock certificate to Mr. Rubin is little more than an artifice on the part of Defendants intended to avoid this Court's Order of June 9, 2004 determining Plaintiff's superior right to possession and ownership of the stock certificate. While a retaining lien is available to an attorney so as to protect his/her fee by a lien attaching to the client's file (People v. Keeffe, 50 N.Y.2d 149 [1980]; Cohen v. Cohen, 183 A.D.2d 802 [2nd Dept. 1992]), an attorney who voluntarily withdraws from a case, as did R & P herein, does not have an absolute right to invoke a retaining agreement. See, Moraitis v. Moraitis, 181 Misc. 2d 510 (Sup. Ct. Nassau Co. 1999). Put another way, the stock certificate did not come into Mr. Rubin's possession in the course of his employment. Thus, he is not entitled to retain it. See, e.g., Resolution Trust Corp. v. Elman, 949 F.2d 624 (2nd Cir. 1991), citing with approval, People v. Keeffe, supra at 155-6 (1980).
Thus, counsel who was long ago relieved as the attorney of record for Defendants herein has no legimate basis to invoke or enforce a retaining lien as to
property which came into its possession more than six months after the attorney was granted leave to withdraw.
Accordingly, it is,
ORDERED, that Plaintiff's motion is granted; and it is further,
ORDERED, that David S. J. Rubin, Esq. of the law firm of Rubin & Purcell, LLP is hereby directed to turn over to counsel for Plaintiff forthwith stock certificate MC1622 representing 1.3 million shares in Media Communications Group, Inc. now known as Tiger Telematics, Inc.
This constitutes the decision and Order of the Court.
Dated: Mineola, NY _____________________________
September 29, 2004 Hon. LEONARD B. AUSTIN, J.S.C.
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