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Marilyn Figueroa v. City of New York and New York City Department of Sanitation

November 15, 2011

MARILYN FIGUEROA, PLAINTIFF,
v.
CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF SANITATION, DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

On August 3, 2011, the Court granted the motion of Cronin & Byczek, LLP ("C&B"), former counsel for the plaintiff, for a charging lien. The Court directed the parties to submit affidavits providing an explanation for the amount of the lien sought and the treatment of the plaintiff's retainer. After reviewing the affidavits submitted, the Court concludes that the charging lien should be granted in the amount of $60,745.29.

I.

As set forth in greater detail in the Court's decision dated January 31, 2011, this dispute arises out of an action brought by the plaintiff, Marilyn Figueroa, against the City of New York and the New York City Department of Sanitation pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), and the New York City Human Rights Law, New York City Administrative Code § 8-101, et seq. (the "NYCHRL"). The plaintiff alleged that the defendants discriminated against her on the basis of her gender and various disabilities; failed to accommodate her disabilities; and harassed her and retaliated against her. On January 30, 2009, the Court dismissed the plaintiff's gender discrimination claims under Title VII and the NYCHRL, as well as her claims under the ADA, but denied the defendants' motion for summary judgment with respect to the remaining claims.

On June 26, 2009, Linda Cronin, the plaintiff's attorney during the events relevant to this motion, filed a notice of appearance, replacing the plaintiff's prior counsel. Notice of Appearance, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. June 26, 2009), ECF No. 54.

On July 23, 2010, the defendants advised the Court by letter, with plaintiff's counsel's consent, that the parties had agreed in principle to the terms of a settlement of the case. On July 30, 2010, however, the defendants' counsel wrote, with Ms. Cronin's consent, to inform the Court that the plaintiff had changed her mind, and did not wish to enter into the settlement agreement. Letter from Eamonn Foley, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. July 30, 2010), ECF No. 78.

On August 24, 2010, Ms. Cronin filed a motion to withdraw as the plaintiff's attorney, on the ground that she believed the plaintiff had entered into a binding settlement agreement, and that she could not in good conscience argue otherwise, as the plaintiff asked her to do. Contemporaneously, the defendants filed a motion to enforce the settlement agreement.

On October 20, 2010, the Court granted Ms. Cronin's motion to withdraw, on the grounds that (1) Ms. Cronin could not, consistently with the New York Rules of Professional Conduct, pursue a position she believed was factually inaccurate, and (2) her testimony in an evidentiary hearing on the motion to confirm the settlement agreement would be both necessary and substantially likely to be prejudicial to the plaintiff. Memorandum Opinion and Order, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Oct. 20, 2010).

On January 31, 2011, the Court issued a memorandum opinion and order granting the defendants' motion to enforce the settlement agreement. Memorandum Opinion and Order, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Jan. 31, 2011). It found, among other things, that the plaintiff had validly conferred authority on Ms. Cronin to enter into the settlement agreement. Id. at 11-12. On March 17, 2011, the Court entered judgment in the case in favor of the plaintiff, pursuant to the settlement agreement, and directed the defendants to hold $70,745.29, representing approximately one-third of the settlement proceeds, in escrow pending resolution of the fee dispute between the plaintiff and C&B. Judgment, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Mar. 17, 2011).

On March 22, 2011, C&B moved for release of the funds pursuant to a statutory charging lien arising under New York law. On August 3, 2011, the Court issued a memorandum opinion and order granting C&B's motion. Memorandum Opinion and Order, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Aug. 3, 2011). The Court found that Ms. Cronin terminated her representation of Ms. Figueroa for good cause and that C&B was therefore not barred from enforcing a charging lien under New York Judiciary Law § 475 ("Section 475"). Id. at 6-7. The Court also rejected the plaintiff's arguments that Ms. Cronin had fraudulently induced the plaintiff into agreeing to the settlement and that the oral settlement agreement was not enforceable. Id. at 7-9. The Court thus granted C&B's motion for a charging lien but directed the parties to submit affidavits explaining the amount of the lien sought and the treatment of the plaintiff's retainer. Id. at 11. Both parties submitted the requested affidavits shortly thereafter. (Linda M. Cronin, Aff. in Support of Motion for Charging Lien, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Aug. 11, 2011) ("Cronin Aff.")); Marilyn C. Figueroa, Aff. in Opp. to Charging Lien, Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Sept. 6, 2011) ("Pl. Aff.").)

II.

"New York Judiciary Law § 475 governs attorneys' charging liens in federal courts sitting in New York." Itar-Tass Russian News Agency, 140 F.3d 442, 448 (2d Cir. 1998). It provides:

From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, 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 client's 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.

N.Y. Judiciary Law ยง 475 (McKinney's 1997). The charging lien is a lien against any judgment or settlement in favor of the client in an action in which the attorney represented the client. Itar-Tass, 140 F.3d at 449. "The lien created by Section 475 . . . is enforceable in federal courts in accordance with its interpretation by New York courts." Id. (internal quotation marks omitted). The New York Court of Appeals has stated that the "statute is remedial in character, and hence should be construed liberally in aid of the object sought by the legislature, which was to furnish ...


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