Steves v. Serlin

• Decision Date: 04 December 1986
• Citation: 125 A.D.2d 780,509 N.Y.S.2d 666
• Court: New York Supreme Court — Appellate Division
• Parties: Wesley K. STEVES, Sr., Individually and as Administrator of the Estate of Linda Lee Steves, Deceased, Plaintiff, v. Steven M. SERLIN et al., Defendants. Julien & Schlesinger, P.C., Appellant; John S. Hall, P.C., Respondent.

Page 666

509 N.Y.S.2d 666

125 A.D.2d 780

Wesley K. STEVES, Sr., Individually and as Administrator of

the Estate of Linda Lee Steves, Deceased, Plaintiff, v. Steven M. SERLIN et al., Defendants.

Julien & Schlesinger, P.C., Appellant;

John S. Hall, P.C., Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 4, 1986.

Julien & Schlesinger (William D. Fireman, of counsel), New York City, pro se.

John S. Hall, P.C. (John S. Hall, of counsel), Warrensburg, pro se.

Before CASEY, J.P., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

Appeal from an order of the Supreme Court at Special Term (Dier, J.), entered September 17, 1985 in Albany County, which, inter alia, granted plaintiff's motion for substitution of attorneys and ordered Julien & Schlesinger, P.C. to deliver plaintiff's file to John S. Hall, P.C.

Julien & Schlesinger, P.C. was retained by plaintiff on a contingent-fee basis to commence an action for wrongful death and medical malpractice arising out of the death of plaintiff's decedent. Thereafter, plaintiff sought to substitute John S. Hall, P.C. as counsel. Hall requested that Julien & Schlesinger execute a consent to the substitution of attorneys and deliver plaintiff's file to it. Upon Julien & Schlesinger's failure to do so, Hall brought on the instant motion seeking an order pursuant to CPLR 321(b) substituting itself for Julien & Schlesinger and an order compelling Julien & Schlesinger to turn over plaintiff's file. Julien & Schlesinger opposed the motion to the extent of requesting that prior to its releasing plaintiff's file it be reimbursed for some $4,430 in disbursements. Special Term substituted Hall for Julien & Schlesinger, ordered Julien & Schlesinger to deliver plaintiff's file to Hall, and further directed that "payment of disbursements be held in abeyance until the conclusion of this action, at which time, if the plaintiff is successful, reimbursement of disbursements and allocation of fees to each of the plaintiff's attorneys shall be made by the Trial Court".

On appeal Julien & Schlesinger contend that Special Term erred in directing the trial court to supervise the payment of disbursements to Julien & Schlesinger only upon plaintiff's successful prosecution of their wrongful death and medical malpractice action. We agree.

An attorney's rendition of services and expenditure of disbursements on behalf of a client entitles him to a commonlaw retaining lien on any of the client's books, papers, money and securities which are in the attorney's possession (People v. Keeffe, 50 N.Y.2d 149, 155-156, 428 N.Y.S.2d 446, 405 N.E.2d 1012). A retaining lien remains in force until the client's account is paid in full and is dependent only upon the attorney's continued possession of the papers, irrespective of the outcome of the litigation involved (id.; Manfred & Sons v. Mortillaro, 69 A.D.2d 1019, 416 N.Y.S.2d 156; Matter of Makames, 238 App.Div. 534, 535, 265 N.Y.S. 515). Accordingly, Julien & Schlesinger was entitled to retain possession of plaintiff's file so long as a balance remained outstanding on plaintiff's account. Of course, any amount owed was limited to disbursements expended, since Julien & Schlesinger was retained on a contingency basis and no award had as yet been recovered by plaintiff (see, Matter of Krooks, 257 N.Y. 329, 332, 178 N.E. 548).

Notwithstanding the foregoing, it was within Special Term's power, in the context...