Civil Court of the City of New York, Kings County
Saltiel LLP, Meryl Wenig, Esq.
FRANCES A. ORTIZ, J.
as required by CPLR 2219(a), of the papers considered in the
review of the respondent's order to show cause.
to Show Cause, Affirmation & Affidavit 1
in Opposition 2
the foregoing cited papers, the Decision/Order of this Court
on this motion is as follows:
a non-payment proceeding. The matter initially appeared on
the calendar on March 6, 2015. However, after
petitioner's non-appearance, the matter was dismissed.
Petitioner moved to vacate the dismissal on March 25, 2015.
The motion to restore was granted on consent. Subsequently,
respondent appeared by counsel in May 2015. Respondent's
counsel on December 13, 2016 moved to withdraw as counsel
claiming respondent failed to communicate with her and to
fulfill her financial obligations. Additionally, she
requested a retaining lien against respondent's file and
a charging lien against the proceeds of the action.
Respondent failed to appear on December 13, 2016 for the
motion. After proper proof of service, Judge Marc Finkelstein
granted the motion to have respondent's counsel relieved.
The matter was adjourned for trial to December 22, 2016.
Respondent retained new counsel in February 2017. Thereafter,
the matter was adjourned multiple times for trial.
respondent moves by order to show cause seeking an order to
have her prior counsel, Wenig Saltiel LLP, turn over her case
file to her current counsel, Marc Aronson. Mr. Aronson in his
affirmation in support of the motion argues that it is
impossible for him to properly represent respondent without
the contents of her file. He states that he has only been
able to examine the court file. He has been advised by
respondent that all of her papers, documents, including her
original papers are in the possession of Wenig Saltiel LLP.
He has requested the file from Wenig Saltiel LLP. According
to Mr. Aronson, Jeffery Saltiel refused to provide the file
because respondent owed his firm legal fees. He states that a
settlement offer was made to Wenig Saltiel LLP but was
unreasonably refused. (Aronson Affirm. ¶s 7
in her affidavit in support of the order to show cause states
that she has lived at the subject premises for ten years. She
is a single mother who works very hard to support herself and
her daughter. She states, she paid Wenig & Saltiel LLP
approximately a total of $6, 424. Most recently in December
2016, she paid them $2, 000. She denies having been served
with Wenig Saltiel LLP's order to show cause to be
relieved as counsel. Additionally, she states, "I am
poor, with limited funds" (Rodriguez Affi'd
¶ 6). She also asserts, she was "..faced with the
dilemma of not having an attorney and not...having sufficient
funds to ever retain another attorney." (Rodriguez
Affi'd ¶ 7). Lastly, she claims that the file
contains her original documents, and it would be impossible
for her to prepare for trial without it. (Rodriguez
Affi'd ¶ 8).
Wenig of Wenig Saltiel LLP opposes the motion arguing that
when an attorney justifiably withdraws from a case, the
attorney is entitled to impose a retaining lien on the file,
until the fees owed are paid. She asserts that respondent has
failed to demonstrate the impossibility of her current
attorney's ability to properly represent her absent the
file. She further argues that only exigent circumstances such
as indigence, should be a basis for a court to order the file
to be returned to the former client. Here, Ms. Wenig claims
respondent has not shown that she is indigent. Therefore, she
contends respondent can not avoid the retaining lien.
Accordingly, she maintains that the file remains with her
firm, until the balance of the legal fees are paid in full.
right of an unpaid attorney to retain paper and property
given to him or her by his or her client in the course of
their professional relationship can be traced as far back as
the 1700 and 1800s in English courts. 65 Colum. L. Rev.
296, 298, "Attorney's Retaining Lien Over Former
Client's Papers, " (1965). "A change of
attorneys obviously does not in itself discharge the client
from the obligation to pay the attorney for past services. In
order to secure such payment the attorney has two kinds of
lien -a general lien for the entire balance of account on all
papersbelonging to his client which came into his possession,
and a charging lien for services rendered...The general or
retaining lien is dependent upon possession; the charging
lien was created...." to secure the attorney's
rights where he does not have possession of papers or
securities belonging to the client. Robinson v
Rogers, 237 NY 467 (1924); Judiciary Law § 475.
the attorney holds a common-law "retaining
lien" which derives from the attorney's
possession of the client file. Therefore, the attorney can
maintain a retaining lien on the client's papers for the
unpaid legal fees balance, or a charging lien that attaches
to the proceeds of the judgment and cannot be affected by a
settlement between the parties. Rosen v Rosen, 97
A.D.2d 837 (2nd Dep't 1983); Judiciary Law § 475.
Generally, where a client requests papers in the former
attorney's possession be returned to him or her, and the
attorney asserts a claim for unpaid legal fees, the attorney