Opinion
2014-10-2
Solomon SHARBAT, et al., Plaintiffs–Appellants, v. LAW OFFICES OF MICHAEL B. WOLK, P.C., et al., Defendants. Solomon Capital, LLC, Nonparty Appellant, v. The Nimkoff Firm, etc., NonpartyRespondent.
Bronstein, Gewirtz & Grossman, LLC, New York (Peretz Bronstein of counsel), for appellants. The Nimkoff Firm, Syosset (Ronald A. Nimkoff of counsel), for respondent.
Bronstein, Gewirtz & Grossman, LLC, New York (Peretz Bronstein of counsel), for appellants. The Nimkoff Firm, Syosset (Ronald A. Nimkoff of counsel), for respondent.
TOM, J.P., FRIEDMAN, ACOSTA, DeGRASSE, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered May 6, 2013, which denied plaintiffs' (collectively, Sharbat) motion to vacate the judgment, entered October 4, 2011, pursuant to the determination and direction of a special referee, awarding legal fees to nonparty respondent (Nimkoff), and denied plaintiffs and nonparty appellant's joint motion to vacate a New York City sheriff's levy and execution, and certain information subpoenas and restraining notices served on TD Bank, unanimously modified, on the law, to the extent of vacating and declaring void the judgment and related enforcement devices, and, as so modified, affirmed, without costs.
The court erred in failing to vacate the judgment entered by the Clerk of the Court upon the direction of the special referee. Where, as here, there is a determination that an attorney's withdrawal from a case is justifiable and that the attorney is entitled to recover for services rendered on the basis of quantum meruit, following a hearing determining these issues, including the amount of fees to be recovered, the withdrawing attorney may impose a retaining lien on the file or a charging lien on the proceeds of the underlying judgment ( see Matter of Mason v. City of New York, 67 A.D.3d 475, 889 N.Y.S.2d 24 [1st Dept.2009]; Bok v. Werner, 9 A.D.3d 318, 780 N.Y.S.2d 332 [1st Dept.2004] ), and/or may file a plenary action for the reasonable value of the services rendered in order to obtain a judgment that may be exercised against all of the former client's assets ( see Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 A.D.2d 183, 186, 754 N.Y.S.2d 220 [1st Dept.2002]; Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 218–219, 651 N.Y.S.2d 525 [1st Dept.1997] ). While the special referee's fee determination entitles Nimkoff to bring a petition for a charging lien within the underlying action against the proceeds in that action and/or to file a plenary action against all of Sharbat's assets, the determination should not have resulted in the immediate issuance of a judgment. Accordingly, the improperly issued judgment is vacated and declared void, along with the devices issued to enforce the judgment.
However, there are no grounds, based on a lack of personal jurisdiction defense or otherwise, to vacate the order directing a special referee to determine Nimkoff's legal fees or the special referee's legal fee determination. The order to show cause with respect to Nimkoff's request to withdraw as Sharbat's counsel was properly served, pursuant to CPLR 308(4), by “nail and mail” on Sharbat's dwelling place or usual place of abode. Given the claims made by Sharbat in a prior proceeding as to his Queens residency, which conflict with his claim in the instant proceeding that he has been living in Israel since 2010, Sharbat's self-serving rebuttal of the process server's affidavit was not believable and was insufficient to support a defense of lack of personal jurisdiction based on improper service of process or raise issues of fact requiring a traverse hearing ( see e.g. Grinshpun v. Borokhovich, 100 A.D.3d 551, 552, 954 N.Y.S.2d 520 [1st Dept.2012], lv. denied21 N.Y.3d 857, 2013 WL 2436328 [2013]; Board of Educ. of City School Dist. of City of N.Y. v. Grullon, 65 A.D.3d 934, 885 N.Y.S.2d 485 [1st Dept.2009]; Matter of Commissioner of Social Servs. of City of N.Y. v. Evans, 170 A.D.2d 225, 565 N.Y.S.2d 507 [1st Dept.1991] ).