United States District Court, S.D. New York
BARRY J. BRETT and LESLIE BRETT, Petitioners,
JAROSLAWICZ & JAROS PLLC and ELIZABETH EILENDER, Respondents.
OPINION & ORDER
EDGARDO RAMOS, U.S.D.J.
Barry J. Brett and Leslie Brett ask this Court to determine
under N.Y. Judiciary Law § 475 the value of a charging
lien held by their former counsel, Respondents Jaroslawicz
& Jaros PLLC and Elizabeth Eilender. Petitioners argue
that Respondents were discharged as counsel prior to the
conclusion of the case and are therefore entitled only to the
quantum meruit value of the legal services they rendered.
Respondents argue that they were never discharged by
Petitioners and the charging lien should therefore be
enforced in the amount of $191, 966.66, the one-third
contingency fee they were entitled to collect under their
original retainer agreement. For the reasons set forth in
this opinion, it is ORDERED that the charging lien in favor
of Respondents is fixed in the amount of $191, 966.66.
February 28, 2015, Petitioner Barry J. Brett
(“Brett”) swallowed a 2.5 cm wire bristle with a
bite of his meal at DB Bistro Moderne, a popular New York
City restaurant. See Am. Compl. ¶¶13-16. Brett
underwent emergency surgery to extract the bristle, which had
become lodged in his throat. Am. Compl. ¶18. He was then
confined to a hospital Intensive Care Unit, where he
underwent an extensive course of antibiotic treatment. Am.
Compl. ¶18. To prosecute a claim for the damages he
suffered, Brett and his wife retained Elizabeth Eilender, a
lawyer at the law firm Jaroslawicz & Jaros PLLC
(“J&J”). Resp'ts' Ex. 1, at 1. Brett
signed a retainer agreement with J&J for Eilender's
services on March 23, 2015. Resp'ts' Ex. 1, at 5. The
agreement provided that Eilender would be compensated for her
services one-third of the gross sum recovered, with J&J
paying all costs and expenses. Resp'ts' Ex. 1, at 2.
Appellate services were specifically excluded from the scope
of the contract. Resp'ts' Ex. 1, at 5.
to the retainer agreement, Eilender represented the Bretts in
a negligence and products liability action against DB Bistro
Moderne (“Defendant”). Eilender represented the
Bretts during all pretrial proceedings and at the jury trial,
which took place from the 24th to the 27th of October 2016.
The jury returned a verdict in favor of the Bretts and
awarded them $285, 790.92 in compensatory damages and $1,
000, 000 in punitive damages. J. 1-2, Nov. 18, 2016.
Defendant's counsel promptly notified the court of his
intention to challenge the award of punitive damages
post-trial. Trial Tr. 464:15-23.
Bretts and Eilender got along up to and during the trial.
Hr'g Tr. 73:2-6, Oct. 4, 2017. After the trial, however,
a series of events led their relationship to sour. First,
Brett and Eilender disagreed over whether to approach
Defendant to settle. Days after the jury verdict was
announced, Brett urged Eilender to approach Defendant with a
settlement proposal he drafted. Hr'g Tr. 21:15-23, Oct.
4, 2017. Eilender did not do so, thinking that approaching
Defendant unprompted might compromise the Bretts's
bargaining position. Hr'g Tr. 22:18-23:4, Oct. 4, 2017.
Responding to an email in which Eilender laid out her
reasoning, Brett requested that David Jaroslawicz, a partner
at J&J who was familiar with the case, call Brett to
discuss the possibility of settlement. Pet'rs' Ex. 2,
3. No. settlement offer was made by Eilender.
Brett and Eilender disagreed over whether to file a motion
for reargument on the issue of future damages. On November
14, 2016, this Court issued an order determining that, in
lieu of the $51, 000 in future damages the Bretts claimed
they were entitled to, they were owed $5100. The next day,
Brett sent Eilender a proposed draft of a letter motion to
reargue. Pet'rs' Ex. 4. Eilender opposed making a
motion to reargue, as did Jaroslawicz, who suggested the
possibility of Brett appearing pro se before the
Court if he insisted on making the motion against their
advice. Pet'rs' Ex. 7. No. motion to reargue the
future damages issue was made.
Brett became dissatisfied with Eilender's work on the
opposition to Defendant's Rule 50 and 59 motions, which
Defendant filed on November 28, 2016. Opposition briefing was
due on December 28, 2016. Trial Tr. 465:9-466:3. Brett and
Eilender clashed over how to approach the brief. In the
middle of the drafting process, Brett called Eilender to
notify her that another law firm, Troutman Sanders LLP, was
going to take over the briefing. Hr'g Tr. 48:9-12, Oct.
4, 2017. Eilender agreed. Hr'g Tr. 48:9-12, Oct. 4, 2017.
On December 14, 2016, Eilender and the Bretts signed a
stipulation for withdrawal and substitution of counsel.
Resp'ts' Ex. 5. This stipulation was never filed with
the Court. Sometime after the stipulation was signed, the
Bretts paid Eilender and J&J their full one-third legal
fee on the compensatory damages portion of the verdict.
Hr'g Tr. 12:22-13:6, Oct. 4, 2017.
new counsel, the Bretts filed their opposition to
Defendant's Rule 50(b) and 59(e) motions on December 28,
2016. Defendant filed its reply on January 11, 2017. Before
the motion could be decided, the Bretts and Defendant entered
mediation on the punitive damages award. Hr'g Tr. 3:4-8,
Sept. 15, 2017. During mediation, on March 22, 2017, Brett
sent Eilender an email seeking to “confirm” that
she would not be paid pursuant to the retainer agreement,
instead offering to pay her 10% of any settlement eventually
reached, up to $50, 000. Pet'rs' Ex. 10. Eilender did
not accept. The Bretts eventually settled the punitive
damages award at $575, 900. Hr'g Tr. 3:17- 18, Sept. 15,
2017. As Defendant did not challenge the jury verdict's
award of compensatory damages, upon the settlement, all
claims asserted had been resolved. The Court consequently
ordered the action against Defendant discontinued on June 27,
she was not involved in the mediation, Eilender continued to
represent Brett after she signed the stipulation substituting
counsel. Specifically, Eilender negotiated to reduce the
amount on Brett's Medicare lien. Hr'g Tr. 82:8-21,
Oct. 4, 2017. Documents uploaded to the Court's
Electronic Case Filing system continued to be sent to
Eilender and J&J.
the settlement was reached, Eilender asserted a lien over the
funds, preventing their immediate disbursement by Defendant.
Hr'g Tr. 3:21-4:4, Sept. 15, 2017. On September 15, 2017,
the Court held a conference to resolve outstanding payments
issues with Defendant. At the conference, the Bretts also
asked the Court to resolve the value of Eilender's
claimed lien, pursuant to N.Y. Judiciary Law § 475.
Hr'g Tr. 4:18-5:9, Sept. 15, 2017. The Bretts claimed
that Eilender is not entitled to any compensation because she
was discharged for cause. Hr'g Tr. 5:2-5, Sept. 15, 2017.
Eilender's counsel stated that his “client heard
for the first time today that she was discharged for
cause.” Hr'g Tr. 14:4-5, Sept. 15, 2017.
hearing to resolve the lien was held on October 4, 2017. At
the hearing, the Bretts maintained that Eilender was not
entitled to any compensation for her legal services because
she was discharged for cause. Hr'g Tr. 2:25-3:8, Oct. 4,
2017. Eilender testified that she was never told she was
discharged at all:
THE COURT: Ms. Eilender, were you ever told in so many words
that you ...