ROBERT R. SPROLE III, Respondent,
LINDA S. SPROLE, Appellant. HARLAN B. GINGOLD, Respondent.
Calendar Date: May 3, 2017
S. Sprole, Ithaca, appellant pro se.
& J.A. Cirando, Syracuse (John A. Cirando of counsel),
for Robert R. Sprole III, respondent.
Brenizer & Gingold, P.C., Syracuse (Harlan B. Gingold of
counsel), respondent pro se.
Before: Garry, J.P., Lynch, Rose and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Ames, J.), entered
January 4, 2016 in Tompkins County, which, among other
things, granted Harlan B. Gingold's motion for a money
judgment against defendant.
September 2015, plaintiff (hereinafter the husband) and
defendant (hereinafter the wife) were granted a divorce.
Harlan B. Gingold had represented the wife in the divorce
action from May 2010 until he withdrew as counsel in June
2010. In October 2010, Gingold moved for a charging lien,
which was granted in the amount of $2, 394.97 against the
proceeds obtained by the wife in the divorce action.
Following the divorce, Gingold moved for a money judgment on
the charging lien, and the wife cross-moved to dismiss
Gingold's motion. In January 2016, Supreme Court granted
Gingold's motion for a judgment in the amount previously
determined plus interest. The wife appeals.
we find no merit in the wife's arguments that Supreme
Court lacked jurisdiction and erred by failing to hold a
formal hearing. The justice presiding over the divorce action
and Gingold's motion was an Acting Supreme Court Justice
(see NY Const, art VI, § 26 [c]), and Supreme
Court expressly retained jurisdiction in the judgment of
divorce over all future matters concerning the underlying
equitable distribution and divorce (see NY Const,
art VI, § 7 [a]). Further, the court did not err by
resolving the motions without a formal hearing, as there was
no dispute as to the material facts and the wife was provided
an opportunity to review the motion and to be heard on it -
as evidenced by her cross motion and the court's order
that addressed each of her arguments (see Sprole v
Sprole, 148 A.D.3d 1337, 1338 ; Neroni v
Follender, 137 A.D.3d 1336, 1339 , appeal
dismissed 27 N.Y.3d 1147');">27 N.Y.3d 1147 ).
the record does not support the wife's contention that
Supreme Court erred by failing to recuse itself. There was no
showing of grounds for legal disqualification (see
Judiciary Law § 14). Accordingly, the request was
addressed to the court's discretion. Such a determination
will not be disturbed absent a showing of an abuse of that
discretion (see Shields v Carbone, 99 A.D.3d 1100,
1102 ; Matter of Albany County Dept. of Social
Servs. v Rossi, 62 A.D.3d 1049, 1050 ). Here, the
wife's new counsel, Gingold's immediate successor,
had represented the daughter of the court attorney in an
unrelated matter. Upon the husband's request, the court
attorney was removed from working on the underlying action,
and only resumed work when the wife later retained different
counsel. Significantly, the wife never objected to the return
of the court attorney and fails to demonstrate any prejudice
resulting therefrom. Further, contrary to the wife's
allegations, a court's unfavorable ruling fails to
establish an abuse of discretion (see Mokay v Mokay,
124 A.D.3d 1097, 1099 ; Gonzalez v L'Oreal USA,
Inc., 92 A.D.3d 1158, 1160 , lv dismissed
19 N.Y.3d 874');">19 N.Y.3d 874 ). Under the circumstances, we find no
abuse of discretion in the court's determination that
recusal was unwarranted (see Mokay v Mokay, 67
A.D.3d 1210, 1213 ; Matter of Albany County Dept.
of Social Servs. v Rossi, 62 A.D.3d at 1050).
the wife argues that Supreme Court erred in denying her cross
motion for dismissal on the basis that Gingold improperly
commenced the action by motion, failed to notarize his
support affirmation and provided improper service of process.
A charging lien is a creature of statute and provides an
attorney compensation for his or her unpaid services, where
applicable, by way of an "equitable ownership interest
in a client's cause of action" (Sprole v
Sprole, 148 A.D.3d at 1338 [internal quotation marks,
brackets and citation omitted]; see Judiciary Law
§ 475). The amount of the charging lien may be
determined prior to the outcome of the underlying action
(see Jaffe v Brown-Jaffe, 98 A.D.3d 898, 899 ;
Butler, Fitzgerald & Potter v Gelmin, 235 A.D.2d
218, 219 ). Contrary to the wife's assertions,
enforcement of a charging lien is properly pursued by way of
motion within the action to which it pertains (see Sprole
v Sprole, 148 A.D.3d at 1338; Wasserman v
Wasserman, 119 A.D.3d 932, 934 ; Dymond v
Dunn, 148 A.D.2d 56, 58 ). The wife's
contention that the 2016 order is duplicative of the 2010
order is similarly without merit; the 2016 order merely
issues a money judgment based on the charging lien and sum
that had already been granted to Gingold in the 2010 order.
Further, Gingold was not required to notarize the affirmation
in support of his motion as he is an attorney admitted to
practice in this state and affirmed that his statements
therein were "true under the penalties of perjury"
(CPLR 2106 [a]). As to service of process, an affidavit of
mailing in the record demonstrates that the wife was properly
served (see CPLR 2103 [b] ; [c]; Neroni v
Follender, 137 A.D.3d at 1337).
wife's arguments regarding Gingold's entitlement to a
charging lien, the amount owed and her right to arbitration
are all related to the prior 2010 order. As no appeal was
taken from that order, these issues are not properly before
us (see Matter of Weichert v New York State Div. of Human
Rights, 73 A.D.3d 1452, 1453 ; Ryan v
Ryan, 75 A.D.2d 1000, 1001 , lvs
dismissed 51 N.Y.2d 709, 1008 ). In any event, the
record reflects that the wife did not dispute Gingold's
entitlement to a charging lien at that time, and her
arguments regarding the balance owed were addressed by
Supreme Court when it determined the amount of the charging
wife's remaining contentions are either ...