Roskind v. Brown
| Citation | 29 A.D.2d 549,285 N.Y.S.2d 410 |
| Parties | Herman ROSKIND et al., Appellants, v. Thomas BROWN, Defendant. Jack D. Glazer, outgoing attorney, Respondent. |
| Decision Date | 11 December 1967 |
| Court | New York Supreme Court Appellate Division |
Before CHRIST, Acting P.J., and BRENNAN, RABIN, HOPKINS and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, plaintiffs appeal from so much of an order of the Supreme Court, suffolk County, dated June 2, 1965, as, in granting their motion for substitution of attorneys, fixed respondent's fee as outgoing attorney at 15% Of plaintiffs' eventual recovery, directed that his lien attach to such recovery and provided for payment of the lien.
Order reversed insofar as appealed from, on the law, without costs, and matter remitted to the Special Term for a hearing before a referee and a determination De novo in accordance herewith. No questions of fact have been considered on this appeal.
Respondent was retained, on a percentage basis, to represent plaintiffs in the prosecution of their claims for personal injuries sustained in an automobile collision attributed to the negligence of another. Respondent retained of counsel Lederberg and Blumberg. Plaintiffs discharged respondent and of counsel, claiming, Inter alia, neglect and inadequacy in the prosecution of their claims. This action, wherein respondent's of counsel Blumberg appeared as attorney of record, was allegedly commenced subsequent to the discharge. An offer of settlement obtained by of counsel Lederberg was also claimed to have been obtained subsequent to the discharge and also unacceptable because of inadequacy. The insurance carrier, notified of the substitution of attorneys and of the outgoing attorney's lack of authority, did not answer the complaint prepared by Blumberg and served (with summons) by Lederberg; and an action De novo was allegedly commenced by plaintiffs' new attorney on their behalf. Respondent has complied with the directive in the order under review that he turn over all papers to the substituting attorney. Plaintiffs contend that, because this action was commenced subsequent to the discharge and was unauthorized, and because respondent was not the attorney of record herein, respondent was not entitled to a charging lien under section 475 of the Judiciary Law. They also contend that he was not entitled to any fee, even on a Quantum meruit basis, because he was discharged for adequate cause.
In our opinion, at bar there was no cause of action with respondent as attorney of record to which a charging lien could attach (Judiciary Law, § 475; ...
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