Flores v. Barricella

• Decision Date: 06 October 1986
• Citation: 506 N.Y.S.2d 885,123 A.D.2d 600
• Parties: Manuel FLORES, et al., Plaintiffs, v. Arcangelo BARRICELLA, Defendant. Henry M. GARGANO, et al., Respondents, v. Joseph MANDELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 885

506 N.Y.S.2d 885

123 A.D.2d 600

Manuel FLORES, et al., Plaintiffs, v. Arcangelo BARRICELLA, Defendant.

Henry M. GARGANO, et al., Respondents, v. Joseph MANDELL, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 6, 1986.

Joseph Mandell, New York City (Emanuel Thebner, of counsel), pro se.

Friedman & Friedman, Brooklyn (Louis L. Friedman, of counsel), for respondents.

Before BRACKEN, J.P., and BROWN, NIEHOFF and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to determine and enforce an attorney's lien pursuant to Judiciary Law § 475, the appeal is from a judgment of the Supreme Court, Kings County (Shaw, J.), dated February 14, 1985, which is in favor of the petitioners and against the appellant in the principal sum of $10,463.83.

Judgment affirmed, with costs.

The record indicates that Reich and Reich, P.C. had a charging lien for legal services rendered because it appeared as the attorney of record for Manuel and Maria Flores in their negligence action against Arcangelo Barricella (see, Rodriguez v. City of New York, 66 N.Y.2d 825, 498 N.Y.S.2d 351, 489 N.E.2d 238). The lien was not affected by the settlement of the action by the incoming attorney, the appellant Joseph Mandell. It was enforceable through a special proceeding pursuant to Judiciary Law § 475 against Mandell, who was in possession of a portion of the settlement proceeds (see, People v. Keeffe, 50 N.Y.2d 149, 428 N.Y.S.2d 446, 405 N.E.2d 1012; Kaplan v. Reuss, 113 A.D.2d 184, 495 N.Y.S.2d 404, aff'd. 68 N.Y.2d 693, 506 N.Y.S.2d 304, 497 N.E.2d 671). It was within the court's discretion to treat the notice of motion, supporting and opposing affidavits as a notice of petition and pleadings in the proceeding (see, Matter of Reich v. Power, 30 A.D.2d 925, 294 N.Y.S.2d 346, aff'd. 22 N.Y.2d 887, 294 N.Y.S.2d 99, 241 N.E.2d 135). Nor did the court err when it struck Mandell's jury demand (Matter of King, 168 N.Y. 53, 60 N.E.1054).

Mandell failed to prove that the firm of Reich and Reich, P.C. was discharged for cause, a circumstance which would have eliminated its entitlement to compensation (see, Teichner v. W & J Holsteins, 64 N.Y.2d 977, 489 N.Y.S.2d 36, 478 N.E.2d 177). The court was presented with sufficient information regarding the legal services performed by the incoming and outgoing attorneys to determine each party's contingent percentage of the recovery (see, Reubenbaum v. B. & H. Express, 6 A.D.2d 47, 49, 174 N.Y.S.2d 287).