Hom v. Hom

• Decision Date: 12 December 1994
• Citation: 622 N.Y.S.2d 282,210 A.D.2d 296
• Court: New York Supreme Court — Appellate Division
• Parties: Jane HOM, Plaintiff, v. George HOM, Respondent, Brandes, Weidman & Spatz, P.C., Petitioner-Appellant.

Page 282

622 N.Y.S.2d 282

210 A.D.2d 296

Jane HOM, Plaintiff, v. George HOM, Respondent Brandes, Weidman & Spatz, P.C., Petitioner-Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 12, 1994.

Brandes, Weidman & Spatz, P.C. (Joel R. Brandes, of counsel), pro se.

George Hom, pro se.

Before RITTER, J.P., and SANTUCCI, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, Brandes, Weidman & Spatz, P.C. appeal (1) from an order of the Supreme Court, Nassau County (Kohn, J.), dated June 19, 1992, which, upon a memorandum decision of the same court dated March 13, 1992, denied its motion to establish a charging lien pursuant to Judiciary Law § 475 and granted the respondent's cross motion for the return of his file and for the return of the retainer and consultation fees he had paid to the appellant to the extent of directing the appellant to pay $9,500 to the respondent, and (2) as limited by its brief, from so much of an order of the same court, also dated June 19, 1992, as upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated June 19, 1992, which granted the defendant's cross motion to the extent of directing the appellant to pay $9,500 to the defendant is dismissed, as that order was superseded by the order dated June 19, 1992, made upon reargument; and it is further,

ORDERED that the order dated June 19, 1992, made upon reargument is affirmed insofar as appealed from; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The respondent, George Hom, retained the appellant law firm on or about May 26, 1989. He signed a retainer agreement which provided that he, as the appellant's client, agreed to pay $15,000, which was "not to be returned to the client, in whole or in part, under any circumstances". Hom paid the consultation fee of $500 and the retainer fee of $15,000. On or about July 15, 1991, Hom discharged the appellant from his service. The appellant moved by order to show cause, pursuant to Judiciary Law § 475, to fix its charging lien in the amount of $8,883.80 and to enforce it. Hom cross-moved for the return of his file and for a return of the retainer and consultation fees. After a hearing, the court found that the retainer agreement was an invalid nonrefundable retainer agreement and therefore determined the value of the firm's services on a quantum meruit basis. The court valued the services at $6,000. The court denied the appellant's application for the "additional" money and granted Hom's cross motion to the extent that the appellant was directed to refund $9,500 to Hom. Upon reargument, the court adhered to its original determination. The appellant asserts, inter alia, that its motion to secure a charging lien pursuant to Judiciary Law § 475 was an in rem proceeding and therefore the court erroneously ordered it to refund $9,500 to Hom.

We find no reason to disturb the court's determination. The fact that the court was to determine the attorney's lien does not preclude the court from granting a refund to a former client, as long as that relief was requested (see, Cass & Sons v. Stag's Fuel Oil Co., 194 A.D.2d 707, 601 N.Y.S.2d 803; Aadal v. Sunchris Realty, 89 A.D.2d 898, 454 N.Y.S.2d 11). The parties charted their own litigation and the court made the necessary determinations (see, Matter of Epstein and Furman, 189 A.D.2d 738, 593 N.Y.S.2d 185).

Judiciary Law § 475 cannot be an umbrella under which an attorney may seek shelter from the demands of a client for the return of excessive fees paid (see, Owen v. Forchelli, 42 Misc.2d 1064, 249 N.Y.S.2d 913). It has long been recognized that courts have the traditional authority to supervise the charging of fees for professional services under...