Opinion
Index No. 452112/2018 Motion Seq. No. 001
01-25-2023
MARIA ORTEGA-VITINIO, JENNIFER PEREZ, Plaintiff, v. LUKE HOWELL, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE Defendant.
Unpublished Opinion
MOTION DATE 12/07/2022
PRESENT: HON. FRANK P. NERVO Justice
DECISION + ORDER ON MOTION
FRANK P. NERVO, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67 were read on this motion to/for ATTY FEE.
Bader &Yakaitis, LLP, current counsel to plaintiff (hereinafter "current counsel" or "counsel"), seeks an order quashing any claim by Langsam Law, LLP, prior counsel to plaintiff (hereinafter "Langsam Law") to attorney's fees in this matter or, alternatively, providing compensation quantum meruit on an hourly basis.
As relevant here, it is undisputed that Langsam Law represented plaintiff for approximately one-month - from September 12, 2017, until Queller, Fisher, Washor, Fuchs &Kool, LLP was retained on October 13, 2017 (NYSCEF Doc. Nos. 50 - 52). It is further undisputed that Langsam Law prepared the Notice of Claim and obtained the police accident report at issue in this matter (NYSCEF Doc. No. 51). Langsam Law contends that it also filed a no-fault application and notice of claim, in addition to performing a preliminary investigation. No other work was performed by prior counsel, and prior counsel did not file/commence the instant action. Thereafter, the matter was settled for $950,000.00, and current counsel offered Langsam Law $5,000.00 for the work performed prior to the institution of this lawsuit and settlement thereof.
Langsam Law rejected that offer, contending it is entitled to 6.5% of the total settlement secured by current counsel as a charging lien.
A charging lien, a lien against proceeds obtained in litigation to satisfy any amount due to the attorney securing same, has long been recognized. "The charging lien was originally developed by the courts to ensure that attorneys were not deprived unfairly of their fees when the services they rendered in litigation produced proceeds for their clients. This judicially created concept subsequently was codified and expanded in Judiciary Law § 475" (Kaplan v. Reuss, 113 A.D.2d 184 [2d Dept 1985]). However, an attorney's recovery under a charging lien is not unlimited. The right to enforce a charging lien under Judiciary Law § 475 is "waived by any action inconsistent with an intent to enforce the lien" (id.; see generally Goodrich v. McDonald, 112 NY 157 [1889]).
Langsam Law contends that it is entitled to 6.5% of the total recovery in this matter for its one-month of work. It contends that it performed more work than the attorneys in Han Soo Lee v. Riverhead Bay Motors and Buszko v. City of New York (infra). However, Langsam Law's reliance on Han Soo Lee v. Riverhead Bay Motors, for the proposition that one-month of pre-filing work is sufficient to earn a 5% fee on the total award recovered is, at best, misplaced (110 A.D.3d 436 [1st Dept 2013]). In Han Soo Lee, the Appellate Division considered, inter alia, a prior counsel's: (1) six-months of work; (2) filing/commencing the lawsuit; (3) preparation of discovery demands and responses to discovery demands; (4) communications with plaintiff's treating physicians and employer; (5) retainer of additional counsel to prosecute the related worker's compensation claim; and (6) 28 hours or work performed by named-partner attorney and 15 hours of work performed by an associate. Upon consideration of these factors, the Appellate Division determined a 5% fee was appropriate.
Likewise, Langsam Law's reliance on Buszko v. City of New York, is also misplaced. There, the Appellate Division found a 5% fee appropriate given a prior counsel's: (1) four-months of work; (2) preparation and filing a bill of particulars; (3) preparation and filing of discovery demands and responses; (4) obtaining plaintiff's medical records; and (5) retention of two experts (118 A.D.3d 464 [1st Dept 2014])
Here, in stark contrast to the Appellate Division authority cited supra, Langsam Law: (1) was retained for one-month; (2) did not file the instant lawsuit; (3) has not claimed it performed any work related to discovery demands or responses; (4) failed to provide any proof of its claim that it obtained any medical records and, in any event, did not provide medical records to incoming counsel requiring incoming counsel perform such work; (5) did not retain additional counsel for the instant or any related action; (6) has not provided any evidence of hours expended in connection with the instant action or work performed prior to the filing of same and (7) did not retain any experts.
Furthermore, despite Langsam Law's contention that it "placed plaintiff on the right path" by filing the notice of claim after "many hours speaking with plaintiff and her husband" and performing a preliminary investigation (NYSCEF Doc. No. 58 at ¶ 3 and 4, citing Han Soo Lee v. Riverhead Bay Motors, supra), the notice of claim filed by Langsam Law was inarguably deficient, as it failed to include any claim for loss of consortium on behalf on plaintiff's husband and precluding plaintiff's recovery for same.
Langsam Law's contention that the attorneys in Han Soo Lee and Buszko (supra) performed less work than it is flatly contradicted by even the most glancing reading of those Appellate Division decisions. Indeed, Langsam Law's assertion that its month of work pre-commencement work - leading to an inarguably deficient notice of claim which prejudiced its own client - is superior to that of attorneys on Han Soo Lee and Buszko, borders on the irrational.
Notwithstanding, Langsam Law would generally be entitled to recover a fee based upon quantum meruit, and general principles of fairness, for the limited work it performed prior to this action's institution by later substituted counsel as well as work performed by current counsel in securing the settlement. However, Langsam Law has not provided any timesheets or other evidence upon which this Court could determine the number of hours it expended on this matter (see NYSCEF Doc. No. 58 at ¶ 3). Furthermore, and more importantly, Langsam Law has, curiously, expressly waived any recovery based upon quantum meruit (NYSCEF Doc. No. 58 at ¶ 5, "[i]t should be noted that movant's claim that my firm should receive a fee based upon quantum meruit is unfounded, since such a fee may only be explicitly asserted by the outgoing attorney, which was never asserted by my firm"). Accordingly, the Court grants prior counsel's waiver of a fee based upon quantum meruit.
It is, therefore, ORDERED that the motion is granted and any claim by Langsam Law, LLP to attorney's fees in this matter is quashed; and it is further
ORDERED and ADJUDGED that Langsam Law, LLP shall not recover for legal work performed in this matter.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.