Rothfeder v City of New York
Annotate this CaseDecided on May 21, 2007
Supreme Court, Bronx County
Melia Rothfeder and Abraham Rothfeder, Plaintiffs
against
The City of New York and American Bridge Company and Columbus Construction Corp., Defendants.
21891/02
Plaintiffs' former attorney: Barry Gedan, Esq.
Plaintiffs' current attorney: Theodore Oshman, Esq.
City's attorney: Lisa A. Aurigemma, Esq.
Alexander W. Hunter, J.
Upon the foregoing papers, the motion, by order to show cause, of plaintiffs' attorney, Theodore Oshman, Esq., of Oshman & Mirisola, LLP (hereinafter "movants") for an order restoring this matter to the active calendar, allowing plaintiffs' counsel to deposit all proceeds in its escrow account to allow for the distribution of funds to the plaintiffs and setting this matter down for a hearing on the issue of attorney's fees, is granted.
The cross-motion by plaintiffs' former attorney, Barry S. Gedan, Esq., for an order disqualifying plaintiffs' current attorneys from receiving any attorneys' fee in this action upon grounds of misconduct by them, requiring the plaintiffs' current attorneys to refund to the plaintiffs their entire claimed contingent attorneys' fee plus disbursements, declaring that the entire portion of the settlement proceeds, in the amount of $50,000, be paid by defendant, The City of New York (hereinafter "City"), Barry S. Gedan, Esq., or in the alternative, requiring that the City deposit the $50,000 settlement in this action in an interest bearing account at Mr. Gedan's bank, requiring the movant to provide a detailed list of the legal services it provided on behalf of the plaintiffs and requiring that the movant provide Mr. Gedan with a copy of the file in this case, is denied in its entirety.
The cross-motion by the City for an order directing the City to deposit into court the settlement amount of $50,000, less the amount of $18,750 payable to the New York City Human Resources Administration for its lien against the settlement proceeds due to plaintiff Melia Rothfeder, discharging the City from any further liability to any party in this action and [*2]discharging the City of all liability with regard to the attorney's lien asserted by Mr. Gedan, is granted in part.
The underlying cause of action involved personal injuries sustained by plaintiff Melia Rothfeder, an eighty-four (84) year old woman, in a trip and fall accident which occurred on September 1, 2001. Plaintiffs initially retained Mr. Gedan to prosecute the action and on February 5, 2003, they sent a letter to Mr. Gedan asking him to stop work on their case and directing him to turn over the file to their new attorneys, the movants herein. A dispute arose between Mr. Gedan and the movants which resulted in a hearing before this court to determine if Mr. Gedan was discharged for cause which would preclude his entitlement to a charging lien on the proceeds of the lawsuit.
This court held a hearing on May 16, 2003 wherein it determined that Mr. Gedan was not discharged for cause and was entitled to a charging lien on the proceeds of this lawsuit. At the time this court held the hearing, the lawsuit brought by Mr. Gedan on behalf of the plaintiffs was against the City and American Bridge Company only. After movants performed a complete investigation into the plaintiffs' cause of action, they determined that the party actually responsible for plaintiff Melia Rothfeder's trip and fall accident was Columbus Construction Corp., (hereinafter "Columbus") which was a party not sued by Mr. Gedan. Movants instituted a separate action against Columbus Construction Corp. which was subsequently consolidated into this action. Defendant American Bridge Company was determined not to be responsible for plaintiff's trip and fall accident.
The action against Columbus settled for a total amount of $100,000 and movants obtained their share of attorneys fees in that action. The action commenced by Mr. Gedan against the City settled for a total of $50,000 and the case was marked disposed. The movants aver that Mr. Gedan has refused to allow the monies stemming from the action against the City to be deposited into movant's escrow account and for the plaintiffs' share to be distributed to them.
Mr. Gedan makes numerous arguments in his cross-motion with respect to his discharge by the plaintiffs. He further avers that the City mis-identified the contractor initially involved in the matter and accuses the movants of misconduct for receiving, depositing and disbursing the monies received in the settlement in the action against Columbus. Mr. Gedan argues that because the movants received the entire attorney fee from that action, they committed misconduct and violated a disciplinary rule thereby forfeiting their right to an attorney fee in the original action that settled against the City. Mr. Gedan proposes that the entire settlement payment by the City in the amount of $50,000 be turned over to him.
In the alternative, Mr. Gedan requests that a hearing be held to determine the proper attorneys' fees to be awarded. He also proposes that, in the interim, the City's portion of the settlement be deposited into a special interest bearing account in his name and in movants name jointly, at the location where he conducts his banking because he "has no trust" in the movants. Mr. Gedan also requests that if a hearing is held to determine his fees, that movants be directed [*3]to turn over a copy of their file to him to enable him to prepare for the hearing.
Mr. Gedan is entitled to recover in quantum meruit, "...the fair and reasonable value of the services rendered..." Lai Ling Cheng v. Modansky Leasing Co., Inc., 73 NY2d 454 (1989); Judiciary Law §475. However, Mr. Gedan is entitled to recover for services rendered to the plaintiffs in the initial action involving the City only. In Cataldo v Budget Rent A Car Corp., 226 AD2d 574 (2nd Dept. 1996), the court stated, "...before an attorney can be granted a lien pursuant to Judiciary Law §475 he or she must have appeared for the client by participating in a legal proceeding on the client's behalf or by having his [or her] name affixed to the pleadings, motions, records, briefs, or other papers submitted in the matter'" (citations omitted). Mr. Gedan did not represent the plaintiffs in the action against Columbus and he has failed to demonstrate that any of the work he performed resulted in the lawsuit against Columbus. He has not demonstrated that he is entitled to any fees from the settlement in the action involving Columbus as he did not commence the action against Columbus and had no involvement in that action whatsoever.
Accordingly, Mr. Gedan is only entitled to recover for services rendered in the initial action involving the City. Movants are permitted to deposit the proceeds of the settlement involving the City in its escrow account pending a determination of the fees Mr. Gedan is entitled to receive. Moreover, movant is permitted to distribute the plaintiffs' share of the funds. Plaintiff, Melia Rothfeder is now more than eighty-four (84) years of age and is entitled to her share of the funds without having to wait for a determination in the fee dispute involving her present and former attorneys.
In light of this court's determination, there is no need for the City to deposit the settlement proceeds into court and the City is discharged from any liability with regard to the attorney's lien asserted by Mr. Gedan.
Furthermore, Mr. Gedan has not demonstrated his entitlement to a copy of movant's file. Mr. Gedan kept a copy of the file in the action he commenced which included the work he performed up until the time he was discharged by the plaintiffs. At the hearing, Mr. Gedan will set forth from his own files, the work he performed on behalf of the plaintiffs and the movants will do the same from their files.
Accordingly, movant's request to set this matter down for a hearing on the determination of Mr. Gedan's fees is hereby granted and the matter is referred to a Judicial Hearing Officer (JHO) to hear and report with recommendations. The JHO will be assigned by the Administrative Judge.
This constitutes the decision and order of the court.
Dated: May 21, 2007
J.S.C.
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