Analisa Salon, Ltd., doing business as Susan Marlowe Figure Salon, appellant,
Elide Properties, LLC, et al., defendants; Carol W. Most, et al., nonparty- respondents. (Action No. 1) Analisa Salon, Ltd., doing business as Susan Marlowe Figure Salon, appellant,
Constable Michael M. Seminara, et al., defendants; Carol W. Most, et al., nonparty-respondents. (Action No. 2) Index Nos. 19232/05, 7582/05
related actions, inter alia, to recover damages for unlawful
eviction and breach of a lease, and for specific performance
of a right of first refusal contained in the lease, the
plaintiff in Action Nos. 1 and 2 appeals from a judgment of
the Supreme Court, Westchester County (Walker, J.), entered
August 28, 2015, which, upon an order of the same court dated
January 30, 2015, denying its motion to vacate a charging
lien of its former attorneys, nonparties Carol W. Most and
A. Guterman, White Plains, NY, for appellant.
Robinowitz Cohlan Dubow & Doherty LLP, White Plains, NY
(Bruce Minkoff of counsel), for nonparty-respondent Carol W.
Most, and Law Offices of Marcia E. Kusnetz, P.C., Rye Brook,
NY, for nonparty-respondent Marcia E. Kusnetz (one brief
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN,
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
E. Kusnetz, and granting, without a hearing, the cross motion
of Carol W. Most and Marcia E. Kusnetz to enforce the
charging lien, is in favor of Carol W. Most and Marcia E.
Kusnetz and against it in the principal sum of $227, 105.08.
that the judgment is affirmed, with costs.
the commencement of an action, ... the attorney who appears
for a party has a lien upon his or her client's cause of
action... and the proceeds thereof" (Judiciary Law
§ 475; see Tangredi v Warsop, 110 A.D.3d 788).
This lien is created by operation of law and does not require
notice to bring it into existence (see Matter of City of
New York [United States of Am.-Coblentz], 5 N.Y.2d 300,
307), and it attaches at the time the action is commenced
(see Matter of Cohen v Grainger, Tesoriero &
Bell, 81 N.Y.2d 655, 657; Tangredi v Warsop,
110 A.D.3d at 788; Matter of Estate of Dresner v State of
New York, 242 A.D.2d 627, 628).
an attorney's representation terminates upon mutual
consent, and there has been no misconduct, no discharge for
just cause, and no unjustified abandonment by the attorney,
the attorney maintains his or her right to enforce the
statutory lien" (Tangredi v Warsop, 110 A.D.3d
at 788 [internal quotation marks omitted]). However, an
attorney who is discharged for cause is not entitled to
compensation or a lien (see Maher v Quality Bus Serv.,
LLC, 144 A.D.3d 990, 992; CPMI, Inc. v Kolaj,
137 A.D.3d 953, 955-956; Doviak v Finkelstein &
Partners, LLP, 90 A.D.3d 696, 699).
there are conflicting claims regarding whether an attorney
was discharged with or without cause, a hearing is required
(see CPMI, Inc. v Kolaj, 137 A.D.3d at 956;
Byrne v Leblond, 25 A.D.3d 640, 642). However,
summary judgment is appropriate where the attorney
establishes, prima facie, that the representation "was
terminated upon mutual consent, and that there [was] no
misconduct, discharge for cause, or unjustified abandonment,
" and the client in response fails to raise a triable
issue of fact (Tangredi v Warsop, 110 A.D.3d at 788;
see Matter of Delorenzo v Perlman, 304 A.D.2d 827,
828; Rondinelli v Yabuki, 224 A.D.2d 404).
nonparties Carol W. Most and Marcia E. Kusnetz, the
plaintiff's former attorneys (hereinafter together the
attorneys), established, prima facie, that the plaintiff owed
them approximately $227, 000 in unpaid legal fees, that the
plaintiff consented to change attorneys, and that they had
properly and promptly asserted their charging lien. Although
the attorneys did not seek to enforce the lien until
approximately two years after being substituted, the record
also demonstrates that the plaintiff was not prejudiced by
the delay. In opposition, the plaintiff failed to demonstrate
that the attorneys' conduct evinced an intent to abandon
their lien or to otherwise raise ...