Figueroa v. NYC Department of Sanitation

Filing 132

MEMORANDUM OPINION AND ORDER re: 117 MOTION for Attorney Fees, filed by Marilyn C. Figueroa. For the reasons discussed within, C&B's motion for a charging lien is granted. C&B should submit an affidavit as described above by August 10, 2011, and the plaintiff may submit an affidavit in response by August 17, 2011. The Clerk is directed to close Docket No. 117. (Signed by Judge John G. Koeltl on 8/3/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────────
MARILYN FIGUEROA,
05 Civ. 9594 (JGK)

Plaintiff,

MEMORANDUM OPINION
AND ORDER

- against –
CITY OF NEW YORK and NEW YORK CITY
DEPARTMENT OF SANITATION,
Defendants.
───────────────────────────────────────
JOHN G. KOELTL, District Judge:

Cronin & Byczek, LLP (“C&B”), former counsel for the
plaintiff, has moved for an order directing Defendant City of
New York to release $70,745.29 currently held in escrow pursuant
to the Court’s order dated March 16, 2011, to C&B, in
satisfaction of a charging lien arising in favor of C&B by
operation of New York Judiciary Law § 475 (“Section 475”).

I.

As set forth in greater detail in the Court’s decision
dated January 31, 2011, this dispute arises out of an action
brought by the plaintiff, Marilyn Figueroa, against the City of
New York and the New York City Department of Sanitation pursuant
to Title VII of the Civil Rights Act of 1964, as amended, 42
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U.S.C. § 2000, et seq. (“Title VII”), the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), and the
New York City Human Rights Law, New York City Administrative
Code § 8-101, et seq. (the “NYCHRL”).

The plaintiff alleged

that the defendants discriminated against her on the basis of
her gender and various disabilities; failed to accommodate her
disabilities; and harassed her and retaliated against her.

On

January 30, 2009, the Court dismissed the plaintiff’s gender
discrimination claims under Title VII and the NYCHRL, as well as
her claims under the ADA, but denied the defendants’ motion for
summary judgment with respect to the remaining claims.
The case was referred to Magistrate Judge Freeman for
settlement in January 2009.

Order, Figueroa v. City of New

York, No. 05 Civ. 9594 (S.D.N.Y. Jan. 30, 2009) (order of
reference to a magistrate judge).

In April 2009, counsel for

the parties informed the Court that a settlement had been
reached.

On April 27, 2009, however, the plaintiff sent a

letter to the Court, indicating that she believed the settlement
was unreasonable and unfair.

Order, Figueroa v. City of New

York, No. 05 Civ. 9594 (S.D.N.Y. April 27, 2009).

The

defendants did not seek to enforce the alleged settlement
agreement.

By order dated May 29, 2009, the Court granted the

motion to withdraw by David Fish, the plaintiff’s attorney at
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that time.

Order, Figueroa v. City of New York, No. 05 Civ.

9594 (S.D.N.Y. May 29, 2009).
On June 26, 2009, Linda Cronin, the plaintiff’s attorney
during the events relevant to this motion, filed a notice of
appearance.

Notice of Appearance, Figueroa v. City of New York,

No. 05 Civ. 9594 (S.D.N.Y. June 26, 2009), ECF No. 54.

By order

dated December 3, 2009, the Court again referred this matter to
Magistrate Judge Freeman for purposes of settlement.

Order,

Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Dec. 3,
2009).

Magistrate Judge Freeman conducted several settlement

conferences, at which the plaintiff was represented by Ms.
Cronin.
On July 23, 2010, the defendants advised the Court by
letter, with plaintiff’s counsel’s consent, that the parties had
agreed in principle to the terms of a settlement of the case.
The parties jointly requested a hearing so that the plaintiff’s
approval of the agreement could be confirmed on the record in
light of her previous repudiation of a settlement agreement.
Pl. Opp. to Movant’s Charging Lien Ex. A, Figueroa v. City of
New York, No. 05 Civ. 9594 (S.D.N.Y. April 27, 2011) (“Opp.”).
On July 30, 2010, however, the defendants’ counsel wrote, with
Ms. Cronin’s consent, to inform the Court that the plaintiff had
changed her mind, and did not wish to enter into the settlement
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agreement.

Letter from Eamonn Foley, Figueroa v. City of New

York, No. 05 Civ. 9594 (S.D.N.Y. July 30, 2010), ECF No. 78.
On August 24, 2010, Ms. Cronin filed a motion to withdraw
as the plaintiff’s attorney, on the ground that she believed the
plaintiff had entered into a binding settlement agreement, and
that she could not in good conscience argue otherwise, as the
plaintiff asked her to do.

Contemporaneously, the defendants

filed a motion to enforce the settlement agreement.
By order dated October 20, 2010, the Court granted Ms.
Cronin’s motion to withdraw, on the grounds that (1) Ms. Cronin
could not, consistently with the New York Rules of Professional
Conduct, pursue a position she believed was factually
inaccurate, and (2) her testimony in an evidentiary hearing on
the motion to confirm the settlement agreement would be both
necessary and substantially likely to be prejudicial to the
plaintiff.

Order, Figueroa v. City of New York, No. 05 Civ.

9594 (S.D.N.Y. Oct. 20, 2010).
On January 31, 2011, the Court issued a memorandum opinion
and order granting the defendants’ motion to enforce the
settlement agreement.

Memorandum Opinion and Order at 14,

Figueroa v. City of New York, No. 05 Civ. 9594 (S.D.N.Y. Jan.
31, 2011) (“Mem. Op.”).

It found, among other things, that the

plaintiff had validly conferred authority on Ms. Cronin to enter
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into the settlement agreement.

Mem. Op. at 11.

On March 17,

2011, the Court entered judgment in the case in favor of the
plaintiff, pursuant to the settlement agreement, and directed
the defendants to hold $70,745.29, representing approximately
one-third of the settlement proceeds, in escrow pending
resolution of the fee dispute between the plaintiff and C&B.
Judgment, Figueroa v. City of New York, No. 05 Civ. 9594
(S.D.N.Y. Mar. 17, 2011).
C&B has now moved for release of the funds pursuant to a
statutory charging lien arising under New York law.

II.

New York Judiciary Law § 475 (“Section 475”) governs
attorneys’ charging liens in federal courts sitting in New York.
Itar-Tass Russian News Agency, 140 F.3d 442, 448 (2d Cir. 1998).
It provides:
From 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,
the attorney who appears for a party has a lien upon
his client's cause of action, claim or counterclaim,
which attaches to a verdict, report, determination,
decision, judgment or final order in his 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
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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 (McKinney’s 1997).

The charging lien

is a lien against any judgment or settlement in favor of the
client in an action in which the attorney represented the
client.

Itar-Tass, 140 F.3d at 449.

The lien created by

Section 475 is enforceable in federal courts in accordance with
its interpretation by New York courts.

Id.

The New York Court

of Appeals has stated that the “statute is remedial in
character, and hence should be construed liberally in aid of the
object sought by the legislature, which was to furnish security
to attorneys by giving them a lien upon the subject of the
action.”

Fischer-Hansen v. Brooklyn Heights R. Co., 66 N.E.

395, 397 (N.Y. 1903).
An attorney who terminates his or her representation for
good cause is entitled to enforce a charging lien under Section
475.

See Itar-Tass, 140 F.3d at 451-52 (citing Klein v. Eubank,

663 N.E.2d 599 (N.Y. 1996)).

In this case, the Court permitted

Ms. Cronin to withdraw upon a finding that her continued
representation of her client would constitute a violation of the
New York Rules of Professional Conduct.

This constitutes good

cause, and accordingly C&B is not barred from enforcing a

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charging lien under Section 475 by virtue of Ms. Cronin’s
withdrawal.
The plaintiff purports to oppose the motion for a charging
lien on essentially three grounds: (1) that Ms. Cronin
fraudulently induced the plaintiff into agreeing to the
settlement by falsely representing that the plaintiff’s treating
physicians could not be compelled to testify; (2) that Ms.
Cronin fraudulently induced the plaintiff into agreeing to the
settlement by concealing a term of the settlement that
permanently barred her from working for the City of New York;
and (3) that the oral settlement agreement was not enforceable.
Notably, the plaintiff does not dispute that, if the settlement
agreement is enforceable, C&B is entitled to a charging lien on
the proceeds of the settlement.

With the exception of the two

allegations of fraudulent inducement, the plaintiff’s arguments
were fully considered by the Court in deciding the motion to
enforce the settlement agreement, and were rejected by the Court
in its January 31, 2011 decision.

The plaintiff may not reargue

the merits of the motion to enforce the settlement agreement
under the guise of opposing a motion for a charging lien.
Relatedly, the plaintiff’s arguments as to fraudulent
inducement go to the validity of the settlement agreement, and
not to the validity of the charging lien.
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Accordingly, they

should have been raised, if at all, in the context of her
opposition to the motion to enforce the settlement agreement.
Because they were not raised, the arguments are waived.
Moreover, they are without merit.

The plaintiff argues that Ms.

Cronin fraudulently induced her into agreeing to settle by
falsely representing that the plaintiff’s physicians could not
be compelled to testify.
contention.

None of the documents support that

A purported transcript of a phone call between Ms.

Cronin and the plaintiff, submitted by the plaintiff, makes
clear that the plaintiff was informed that her doctors refused
to testify.

Opp. Ex. C at 4.

Fairly read, the transcript

indicates that the doctors did not want to testify, and that it
would have been unwise to attempt to compel them to testify, in
light of their opposition.
The plaintiff also argues that Ms. Cronin fraudulently
induced her into agreeing to settle by concealing a term of the
settlement that permanently barred her from working for the City
of New York.

This argument is also unsupported.

As revealed by

the transcript submitted by the plaintiff, the plaintiff and Ms.
Cronin discussed the subject of the plaintiff’s future
employment at length.

While Ms. Cronin did not inform the

plaintiff, during the course of that particular call, that she
would be barred from future employment by the city, the
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transcript does indicate that the plaintiff repeatedly
emphasized that she did not wish to work at all in the future,
and that if she did work, she would seek employment close to her
home in Poughquag.

Opp. Ex. C at 6-9; Reply Aff. at ¶ 15.

In

light of the plaintiff’s statements, it cannot be argued that
she entered into the settlement agreement because she had been
deceived into thinking she would be able to work for the city in
the future.
Accordingly, the plaintiff’s arguments in opposition to
C&B’s motion for a charging lien are without merit, and the
motion will be granted.

III.

The only remaining issue is the proper amount of the
charging lien.
Where the amount of a charging lien has been fixed by
agreement, execution is appropriate on the judgment for the
amount agreed to by the parties, Itar-Tass, 140 F.3d at 453,
subject to the limitation that, because a charging lien is an
equitable remedy, the amount of the lien must be “fair,” Sutton
v. N.Y. City Transit Auth., 462 F.3d 157, 161 (2d Cir. 2006).
In considering whether the amount of a charging lien is fair, a
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court looks to “the terms of the percentage agreement, the
nature of the litigation, difficulty of the case, time spent,
amount of money involved, results achieved and amounts
customarily charged for similar services in the same locality.”
Id. (internal quotation marks omitted).
Under the circumstances of this case, it would appear that
the requested amount of the charging lien, $70,745.29, is fair.
The retainer agreement between the plaintiff and C&B provides
for a one-third contingency fee against which an initial
retainer of $10,000 is credited.

Linda M. Cronin, Aff. in

Support of Motion for Charging Lien Ex. A at 1, Figueroa v. City
of New York, 05 Civ. 9594 (S.D.N.Y. Mar. 22, 2011) (“Cronin
Decl.”).

C&B has submitted billing records that demonstrate

that Ms. Cronin expended substantial time on the case and
indicate that, had the plaintiff been billed on an hourly basis,
she would have been charged in excess of the amount sought
pursuant to the present motion.

Both the hours and the rate

(generally $275 for Ms. Cronin’s time) that were used to
calculate the fees, if billed at an hourly rate, are reasonable.
Moreover, the results obtained by Ms. Cronin appear to
constitute a vast improvement over the defendants’ previous
settlement offer, which was $35,000, according to the transcript
submitted by the plaintiff.

Opp. Ex. C at 7.
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However, it is unclear how the amount of $70,745.29 has
been calculated.

The retainer agreement provided that the

initial $10,000 retainer would be credited against the one-third
contingency fee.

See Cronin Decl. Ex. A at 1.

The one-third

fee would be $70,000 less the $10,000, or $60,000.
unclear what the basis for the $745.29 is.
how costs are being calculated or sought.

It is

It is also unclear
Accordingly, before

the amount of the lien is fixed or any funds are released from
escrow by the defendants, C&B should submit an affidavit
providing an explanation for the amount of the lien sought and
the treatment of the plaintiff's retainer.

CONCLUSION

For the reasons discussed above, C&B's motion for a
charging lien is granted.

C&B should submit an affidavit as

described above by August 10, 2011, and the plaintiff may submit
an affidavit in response by August 17, 2011.

The Clerk is

directed to close Docket No. 117.
SO ORDERED.
Dated: New York, New York
August 3, 2011

States District Judge

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