Cincotta v. Hempstead Union Free School District

Filing 59

ORDER denying #48 Motion for Attorney Fees. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 11/29/2016. (Roman, Joshua)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT CINCOTTA,
Plaintiff,
-against-

ORDER
CV 15-4821 (ADS) (AKT)

HEMPSTEAD UNION FREE SCHOOL
DISTRICT; BETTY J. CROSS, WAYLYN
HOBBS, JR., SHELLEY BRAZLEY,
BRANDON V. RAY, JOANN SIMMONS,
SUSAN JOHNSON, in their individual
capacities,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
On September 21, 2016, the Court conducted a Discovery Status Conference in this
matter. See DE 44. During that conference, the Court directed The Scher Law Firm, LLP
(“TSLF”), then counsel of record for the Defendants, “to turn over the file involving the school
district and any other defendants whom the Hamburger firm will be representing to Attorney
Yaffe within one week. The Scher law firm retains its attorney lien for nonpayment under New
York state law, [b]ut the file is to be turned over as directed.” Id. ¶ 5.
On November 3, 2016, TSLF filed a letter motion addressed to the undersigned seeking:
(1) to withdraw as counsel of record for Defendants Shelley Brazley and Brandon V. Ray; and
(2) enforcement of a charging lien asserted against Defendants for non-payment of fees incurred
prior to successor counsel coming into the case. DE 48. In light of the fact that the motions
should have been directed to Judge Spatt in the first instance, on November 17, 2016, Judge
Spatt denied, without prejudice, that portion of TSLF’s motion seeking to withdraw as counsel of

record for Defendants Brazley and Ray and referred the portion of the motion seeking
enforcement of the charging lien to this Court. See DE 52.
Turning to the instant motion, the Court initially points out that TSLF’s motion is
procedurally defective since it fails to comply with Local Civil Rule 7.1(a), which requires, in
part, a notice of motion and a memorandum of law, “setting forth the cases and other authorities
relied upon in support of the motion. . . .” Local Civil Rule 7.1(a)(2). In addition, although
TSLF seeks unpaid fees in the amount of $3,224.25 [see DE 48], the Court is unable to
determine the underlying reasonableness of the outstanding fees charged since no
contemporaneous time records have been provided. Indeed, “[t]he Second Circuit made clear in
New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983),
that ‘any attorney . . . who applies for court-ordered compensation in this Circuit for work done
. . . must document the application with contemporaneous time records,’ which ‘specify, for
each attorney, the date, the hours expended, and the nature of the work done.’” Pilitz v. Inc. Vill.
of Freeport, 762 F. Supp. 2d 580, 584 (E.D.N.Y. 2011).
Aside from these procedural deficiencies, TSLF’s motion for fees predicated upon a
charging lien levied pursuant to New York Judiciary Law § 4751 suffers from a more
fundamental defect — “a charging lien may only attach to ‘the proceeds’ of a party’s affirmative
New York Judiciary Law § 475 states that “[f]rom the commencement of an action,
special or other proceeding in any court or before any state, municipal or federal department,
except a department of labor, or the service of an answer containing a counterclaim, or the
initiation of any means of alternative dispute resolution including, but not limited to, mediation
or arbitration, or the provision of services in a settlement negotiation at any stage of the dispute,
the attorney who appears for a party has a lien upon his or her client's cause of action, claim or
counterclaim, which attaches to a verdict, report, determination, decision, award, settlement,
judgment or final order in his or her client's favor, and the proceeds thereof in whatever hands
they may come; and the lien cannot be affected by any settlement between the parties before or
after judgment, final order or determination. The court upon the petition of the client or attorney
may determine and enforce the lien.” N.Y. Judiciary Law § 475.
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recovery.” Hampshire Grp. Ltd. v. Scott James Co., No. 14CV2637, 2015 WL 5306232, at *6
(S.D.N.Y. July 27, 2015) (quoting New York Judiciary Law § 475); see Banque Indosuez v.
Sopwith Holdings Corp., 98 N.Y.2d 34, 44, 745 N.Y.S.2d 754, 759, 772 N.E.2d 1112 (2002)
(“[T]he litigation or settlement must result in more than the mere entry of a judgment on behalf
of a client: there must be proceeds from the litigation upon which the lien can affix.”). It follows
that “[a]n attorney who merely defends or protects his client’s interest in property without
obtaining an affirmative recovery is not entitled to a lien on the property that his client retains.”
Petition of Rosenman & Colin, 850 F.2d 57, 61 (2d Cir. 1988); see Martz v. Inc. Vill. of Valley
Stream, 22 F.3d 26, 31 (2d Cir. 1994) (“Here, because it is undisputed that the services provided
by Martz that are the subject of the dispute did not result in an affirmative recovery of any sort,
section 475 [of the New York Judiciary Law] is inapplicable and Martz’s attempt to use it as the
basis for an alleged entitlement must fail.”); Hampshire Grp. Ltd., 2015 WL 5306232, at *6;
Galven v. Aspen Corp., 967 F. Supp. 2d 615, 627 (E.D.N.Y. 2013); Rosewood Apartments Corp.
v. Perpignano, No. 99 Civ. 4226, 2005 WL 1084396, *3–4 (S.D.N.Y. May 5, 2005); Int’l
Telecomm., Inc. v. Generadora Electrica del Oriente, S.A., No. 00 Civ. 8695, 2004 WL 307455,
*1 (S.D.N.Y. Feb.13, 2004); In re Schick, 215 B.R. 13, 16 (S.D.N.Y. 1997) (“The claim to void
the attachment is no different than defending the defendant’s right in its existing property . . .
[therefore] voiding the attachment will merely give the defendant the same right to and use of the
fund it enjoyed on day one. For this reason, the ‘claim’ does not support a charging lien.”).
In the instant case, although the issue of TSLF’s entitlement to a charging lien has not
been properly briefed, the record establishes (and the instant motion confirms) that TSLF acted
as predecessor counsel to Defendants. Further, after the Amended Complaint was filed, TSLF,
on behalf of Defendants, filed a motion to dismiss [DE 14], which was subsequently granted, in

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part, and, denied in part, by Judge Spatt. DE 39. Thereafter, following the substitution of
successor counsel for TSLF, Answers to the Amended Complaint were interposed. See DE 50,
55. Notably, neither Answer asserts counterclaims that could result in an affirmative monetary
recovery on behalf of defendants. See Hampshire Grp. Ltd., 2015 WL 5306232, at *7
(“Bringing counterclaims is not enough to trigger the enforceability of a charging lien. Rather,
‘[t]he majority of precedents . . . hold that, for want of a better term, some available cash
proceeds must be created in order to provide a corpus to satisfy the lien.’”) (quoting J.K.V. v.
T.W.C., 49 Misc. 3d 899, 910, 966 N.Y.S.2d 812, 821 (Sup. Ct. 2013) (citing cases)). As such,
this appears to be a case in which TSLF undertook to defend against affirmative claims brought
by the Plaintiff but otherwise did not interpose counterclaims that could have given rise to an
independent monetary recovery for the Defendants. Rather, if Defendants are successful in this
suit, they would remain in the same monetary position they would have enjoyed had the suit not
been filed in the first instance, other than the expense of defending the litigation. See In re
DeWolfe, 494 B.R. 193, 194 (W.D.N.Y. 2013) (“There are many cases under New York
Judiciary Law § 475 making it clear that there can be no charging lien upon the proceeds of a
property interest that the client already had before his or her lawyer expended time and energy [ ]
in preserving that interest. . . .”); Galvez v. Aspen Corp., 967 F. Supp. 2d 615, 627 (E.D.N.Y.
2013) (“Given the fact that the services rendered by V & A in this action have not created any
‘proceeds,’ there is nothing to which a lien can attach.”). As such, no claim has been properly
asserted by TSLF within the meaning of New York Judiciary Law § 475 which could serve as
the basis for a proper charging lien. See In re Schick, 215 B.R. at 15 (“The prerequisites to the
creation of a charging lien are well-settled; as a result of the attorney’s efforts, (1) the client must
assert a claim, (2) which can result in proceeds (3) payable to or for the benefit of the client.”);

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see also Martz, 22 F.3d at 31; Tunick v. Shaw, 6 Misc. 3d 1014(A), 800 N.Y.S.2d 358 (Sup. Ct.
2004), aff’d as modified, 45 A.D.3d 145, 842 N.Y.S.2d 395 (2007) (“[A]n attorney’s charging
lien does not attach when an attorney merely defends or protects a client’s interests in property
the client already owns, without asserting an affirmative claim, or obtaining an affirmative
recovery.”).
Although, “[t]he Second Circuit has made clear that Section 475 [of the New York
Judiciary Law] governs attorneys’ charging liens in federal courts sitting in New York, and such
liens are ‘enforceable in federal courts in accordance with its interpretation by New York
courts,’” Stair v. Calhoun, 722 F. Supp. 2d 258, 267 (E.D.N.Y. 2010) (quoting Itar–Tass Russian
News Agency v. Russian Kurier, Inc., 140 F.3d 442, 449 (2d Cir. 1998)), in the instant case, there
is no affirmative claim or recovery sought that could provide the basis or the funds for such a
lien; hence, TSLF’s theory of recovery in this instance is misplaced.
However, this does not leave TSLF without a remedy to collect its unpaid fees. Rather,
TSLF is free to initiate a plenary action in quantum meruit. See Hampshire Grp. Ltd., 2015 WL
5306232, at *4 (recognizing the viability of plenary action in quantum meruit in order to recover
unpaid fees); Bretillot v. Burrow, No. 14CV7633, 2015 WL 5306224, at *7 (S.D.N.Y. June 30,
2015), report and recommendation adopted, No. 14 CIV. 7633, 2015 WL 6455155 (S.D.N.Y.
Oct. 26, 2015). “Unlike the charging lien, an application in quantum meruit is a cause of action
that can be exercised by the attorney against all of the former client’s assets—not merely against
the recovery obtained from a defendant.” Id. at *15; see Ocean World Lines, Inc. v. Atlant (USA)
Inc., No. 06 Civ. 6259, 2008 WL 1776415, *2 (S.D.N.Y. Apr.17, 2008).
Based upon the foregoing analysis, TSLF’s letter motion seeking enforcement of its
charging lien is DENIED. In the event TSLF seeks to bring a plenary action in quantum meruit,

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the Court points out that a federal court may, but is not required to, exercise supplemental
jurisdiction over fee disputes between litigants and their attorneys when the disagreement relates
to the main action.” See Achtman v. Kirby, McInerney & Squire, LLP, 150 F. App’x 12, 15 (2d
Cir. 2005) (citing Alderman v. Pan Am. World Airways, 169 F.3d 99, 102 (2d Cir. 1999));
Bretillot, 2015 WL 5306224, at *12; Petition of Rosenman Colin Freund Lewis & Cohen, 600
F. Supp. 527, 531 (S.D.N.Y. 1984) (“It is well settled that [a] federal court may, in its discretion,
exercise ancillary jurisdiction to hear fee disputes and lien claims between litigants and their
attorneys when the dispute relates to the main action, regardless of the jurisdictional basis of the
main action.”) (internal quotation and citation omitted). Further, since “[a] judgment in quantum
meruit is functionally a dispositive decision on what is ordinarily styled a ‘plenary action in
quantum meruit,’” any such action must be brought before the assigned district judge in the first
instance. Bretillot, 2015 WL 5306224, at *1 n. 1.

SO ORDERED.
Dated: Central Islip, New York
November 29, 2016
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

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