Michael B. Miller, P.C. v Joel J. Turney, LLC

[*1] Michael B. Miller, P.C. v Joel J. Turney, LLC 2007 NY Slip Op 51448(U) [16 Misc 3d 1116(A)] Decided on May 29, 2007 Supreme Court, Suffolk County Sgroi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 29, 2007
Supreme Court, Suffolk County

Michael B. Miller, P.C., Plaintiff,

against

Joel J. Turney, LLC, Defendant.



9654-2007



MICHAEL B. MILLER, P.C.

Plaintiff Pro Se

100 Broadhollow Road, Suite 315

Farmingdale, New York 11735

JOEL J. TURNEY,LLC

Defendant Pro Se

30 Vesey Street, 2nd Floor New York, New York 10007

Sandra L. Sgroi, J.

Upon the following papers numbered 1 to 14 read on this Motion: Order to Show Cause and supporting papers 1-7; Affirmation in opposition and supporting papers 8-11; Affirmation in Reply and supporting papers 12-14; it is,

ORDERED that this action is dismissed because it has not been properly commenced; and it is further

ORDERED that if any additional applications are made to this Court, the Plaintiff and Defendant are directed to submit affidavits and not affirmations in support of their requests for relief.

Although both the Defendant and Plaintiff are law firms, they are parties to this litigation, and therefore the submission of an affirmation instead of an affidavit is improper (see, CPLR 2106; Slavenburg Corp. v. Opus Apparel, 53 NY2d 799, 801, 439 NYS2d 910, 422 NE2d 570; Samuel & Weininger v. Belovin & Franzblau, 5 AD3d 466, 772 NYS2d 600; Pisacreta v. Minniti, 265 AD2d 540, 697 NYS2d 160; Board of Managers of Ocean Terrace Towne House Condominium v. Lent, 148 AD2d 408, 409, 538 NYS2d 824). The parties and their principals are directed to submit affidavits and not affirmations in support of any further applications for relief in the future.

On or about October 14, 2000, the Law Office of Michael B. Miller, P.C. (the Plaintiff herein) was retained by Luis Paucar for the purpose of commencing a civil action against the State of New York for the recovery of damages. The Plaintiff's retainer agreement, signed by Paucar and witnessed by Michael Miller, Esq., was filed with the State of New York (Retainer Statement No. 6177411) (see, Plaintiff's Exhibit "A"). On or about November 13, 2000, one month after the Plaintiff's retainer agreement was signed by Paucar, the law office of Michael B. Miller, P.C. received a letter from the law office of Joel J. Turney (the Defendant herein) informing Miller that Luis Paucar had retained the Turney law firm to represent him in the negligence action against the State and that the Plaintiff would no longer be representing Paucar (see, Defendant's Exhibit "1"). Shortly after receiving this letter from the Defendant, the Plaintiff sent a statement to Luis Paucar with a copy to Joel J. Turney for fees in the amount of $2,500.00 plus $100.00 disbursements for a total amount of $2,600.00 (see, Defendant's Exhibit "2"). A few weeks after the Plaintiff sent this notice, Turney and Miller had a discussion and eventually Turney and Miller entered into a written agreement addressing the issue of the fees owed to the Plaintiff (see, Plaintiff's Exhibit "B"). This written agreement states: MICHAEL B. MILLER, P.C., outgoing attorney for the plaintiff herein, having performed certain work in the prosecution of the civil matter, hereby maintains an Attorney's Lien for the equitable share of the ultimate contingent legal fee in this manner.JOEL J. TURNEY, P.C., the incoming attorney of record for the plaintiff herein, hereby agrees to recognize said Attorney's Lien and to the extent that a recovery is had, agrees that no portion of the legal fee shall be disbursed from the escrow account until such time an agreement is reached between MICHAEL B. MILLER, P.C. and JOEL J. TURNEY, P.C., and to the extent that no agreement is reached said [*2]attorney's fees shall remain in said escrow account until an Order of Court is issued deciding the equitable shares thereof. To the extent that an Order of the Court is required to determine the equitable shares of the legal fee, incoming attorney JOEL L. TURNEY, P.C., shall move for said Order within 30 days (sic) the stipulation of discontinuance is executed on behalf of the plaintiff herein. (Plaintiff's Exhibit "B").

According to the affirmation submitted on this motion, Miller was told on October 4, 2006, that the case settled for $450,000.00 and the attorney's fee received by the Defendant was approximately one-third of that or $150,000.00. In the relief requested in this Order to Show Cause, the Plaintiff is suing on the above written agreement. The client, Luis Paucar, was not a signatory to that agreement and has not been named as a party in this litigation.

The Plaintiff is requesting that this Court award it approximately one-third of the attorneys fee received by the Defendant. As noted above, the Defendant's fee was approximately one-third of the recovery obtained by Paucar. Therefore, the Plaintiff is seeking one-third of one-third of a fee for performing minimal work on the file. The Plaintiff did not prepare a summons and complaint or a Notice of Intention to Make a Claim. The work performed by the Plaintiff was essentially limited to conversations with Paucar and his wife and travel to Brooklyn and Queens.

The Plaintiff alleges in this application that "it is usual and customary in personal injury practice to give a referring attorney one-third of the attorney fees recovered for doing little to no work" (see affirmation of Michael B. Miller, Esq.). The Court will not comment at this time on this "alleged" practice since this matter will be disposed of on another ground. However, the Plaintiff is referred to Code of Professional Responsibility DR 2-107(a) and 22 NYCRR 1200.12(a) (see also, Robert P. Lynn, Jr., LLC v. Purcell, 11 Misc 3d 400, 812 NYS2d 760; see generally, Graham v. Corona Group Home, 302 AD2d 358, 754 NYS2d 362; Ford v. Albany Med. Ctr., 283 AD2d 843, 724 NYS2d 795).

The Court is often required to allocate percentage shares of contingent attorney fees earned in personal injury actions to multiple law firms that handled the underlying litigation or various stages of it (see, Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454, 541 NYS2d 742, 539 NE2d 570,; Louima v. City of New York, 2004 U.S. Dist. LEXIS 13707, 2004 WL 2359943 [EDNY 2004]; see generally, Casey v. Ruffino, 306 AD2d 304, 760 NYS2d 537, appeal dismissed by, 1 NY3d 563, 775 NYS2d 776, 807 NE2d 888). The Courts, however, are scrupulous about requiring law firms and their counsel who seek to collect attorney fees or enforce liens under Judiciary Law §§ 475 and 475-a to adhere to the requirements contained in those sections and the Disciplinary Rules governing attorneys of this State.

A client may discharge his attorney at any time without cause (see, Campagnola v. Mulholland, Minion & Roe, 76 NY2d 38, 556 NYS2d 239, 555 NE2d 611). An attorney who is discharged by a client without cause has the following three remedies to recover the value of legal services: (1)a retaining lien,(2) a charging lien (Judiciary Law § 475), and (3)a plenary action for a quantum meruit recovery. These remedies are not exclusive, but they are cumulative (see, Schneider, [*3]Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 AD2d 183, 754 NYS2d 220) . Judiciary Law § 475 states that an "attorney who appears for a party" has a lien on a "client's cause of action, claim or counterclaim" and that lien arises by commencing an action or special proceeding "in any court" or before nearly all municipal, state, and federal departments (except a department of labor) or by serving an answer (Judiciary Law § 475). Under Judiciary Law §475, the Plaintiff is obligated to have commenced an action or other proceeding on the underlying personal injury case in any court. Since the Plaintiff did not commence an action nor did it appear as the attorney of record, there is no charging lien in existence (see, Jaghab & Jaghab v. Marshall, 256 AD2d 342, 681 NYS2d 330).

The "retaining lien" gives an attorney the right to keep, with certain exceptions, all of the papers, documents and other personal property of the client which have come into the lawyer's possession through a professional capacity as long as those items are related to the subject representation (see, Lerner v. Seigel, 22 AD2d 816, 254 NYS2d 802). The Plaintiff is not seeking to enforce a retaining lien herein (see generally, Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 AD2d 183, 186, 754 NYS2d 220).

However, the absence of a charging lien or a retaining lien is not dispositive of an outgoing attorney's claim to recovery of the reasonable value of legal services rendered and the attorney may still seek a recovery sounding in quantum meruit (see, Ling Cheng v. Modansky Leasing Co., 73 NY2d 454, 458, 539 NE2d 570, 541 NYS2d 742).

The Court of Appeals in Ling Cheng v. Modansky Leasing Co.(supra ) held that where one attorney is replaced by another during the representation of a client: the outgoing attorney may elect to take compensation on the basis of a presently fixed dollar amount based upon quantum meruit for the reasonable value of services or, in lieu thereof, the outgoing attorney has the right to elect a contingent percentage fee based on the proportionate share of the work performed on the whole case. The percentage may be fixed at the time of substitution but, as several courts have recognized, is better determined at the conclusion of the case when such factors as the amount of time spent by each lawyer on the case, the work performed and the amount of recovery can be ascertained.

In Ling Cheng v. Modansky Leasing Co.(supra ), the Court of Appeals stated that even in the absence of a charging lien, the outgoing attorney is entitled to "elect between a fixed fee, measured by quantum meruit, or a contingent percentage fee, also measured by quantum meruit"; see also Chadbourne & Parke LLP v. AB Recur Finans, 18 AD3d 222, 223, 794 NYS2d 349). It is important for the Plaintiff to realize at this point that if the Court determines the fee, any fee awarded by this Court will be based upon quantum meruit.

Where the Plaintiff's recovery is based on the value of his services to the client, quantum meruit [*4]recovery measures "the value of the attorney's services provided to the client prior to discharge"(Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 AD2d 183, 754 NYS2d 220).

In an action on a quantum meruit theory, this Court will evaluate and weigh several factors, following an opportunity to conduct discovery, in determining the reasonable value of such legal services. The Defendant will be entitled to discover the work and time actually spent by the Plaintiff and the utility, helpfulness, and value of such alleged efforts to the recovery. In quantum meruit, the Plaintiff would not be entitled to fixed percentages, such as his present request for one-third of the one-third of the recovery received by Defendant.

Under the facts stated in this application, the Plaintiff's sole remedy is to institute a plenary common law action for damages against the Defendant under a quantum meruit theory (see, Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259 [2nd Cir. 2004]; Decolator, Cohen & DiPrisco, LLP v. Lysaght, Lysaght & Kramer, P.C., 304 AD2d 86, 92, 756 NYS2d 147; Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 AD2d 183, 186, 188-89, 754 NYS2d 220; Butler, Fitzgerald & Potter v. Gelmin, 235 AD2d 218, 218-219, 651 NYS2d 525; see also, Tops Mkts, Inc. v. Quality Mkts, Inc., 2001 U.S. Dist. LEXIS 4238, 2001 WL 392082, 2001-1 Trade Cases P 73,266; Lai Ling Cheng v. Modansky Leasing Co., Inc., 73 NY2d 454, 539 NE2d 570, 541 NYS2d 742). Quantum meruit is the appropriate method for calculating damages, because liability here is based on a contract that was terminated by the client before it could be completed by the Plaintiff (see, Schultz Constr. Inc. v. Franbilt, Inc., 285 AD2d 936, 938, 728 NYS2d 828) and upon a subsequent contract entered between two attorneys, the Plaintiff and the Defendant (see, Code of Professional Responsibility DR 2-107(a) and 22 NYCRR 1200.12(a)).

The CPLR has specific sections providing the procedure that must be followed to commence a plenary action. An action is commenced when a summons and complaint or summons with notice is filed with the County Clerk, and a special proceeding is commenced by filing a petition, which may be brought on by notice of petition or order to show cause (see, CPLR § 304). The Court has contacted the County Clerk and has been informed that no summons and complaint has been filed by the Plaintiff under this index number. There is no summons and complaint attached to the Order to Show Cause. Therefore, since no action has been commenced the Court must deny the order to show cause and mark this litigation disposed (see, F & K Supply Inc. v. Freeman, 243 AD2d 933, 664 NYS2d 640). Upon a showing that the summons and complaint was served and filed prior to the issuance of this order, the case will be restored.

Dated:________________________SANDRA [*5]L. SGROI, J. S. C.