Avaras v. Clarkstown Central School District et al
Filing
156
OPINION & ORDER: For the foregoing reasons, Plaintiff's motion to reject DeCrescenzo's charging lien as invalid is GRANTED in part and DENIED in part. Plaintiff's motion is GRANTED as to Plaintiff's request to deem the lien as waived and DENIED in all other respects. Although the Court finds that DeCrescenzo's Section 475 charging lien is validly asserted over Plaintiff's settlement funds from the instant action, the Court concludes that the enforcement of the lien was waived due to DeCrescenzo's unreasonable delay in asserting the lien. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 145. (Signed by Judge Nelson Stephen Roman on 12/2/2021) (ate)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONNIE AVARAS, individually and on behalf of
her minor child, N.A.,
12/2/2021
Plaintiff,
No. 15 CIV 9679 (NSR)
-againstCLARKSTOWN CENTRAL SCHOOL DISTRICT,
BOARD OF EDUCATION FOR THE
CLARKSTOWN CENTRAL SCHOOL DISTRICT,
and NEW YORK STATE DEPARTMENT OF
EDUCATION,
OPINION & ORDER
Defendants.
NELSON S. ROMÁN, United States District Judge:
Before the Court is Plaintiff Connie Avaras’ motion to reject as invalid non-party Gina
DeCrescenzo, P.C.’s charging lien asserted in the instant litigation. (ECF No. 145.) Plaintiff
Connie Avaras (“Plaintiff”), individually and as parent of N.A., commenced this action against the
Clarkstown Central School District (“the District”), the Board of Education for the Clarkstown
Central School District, the New York State Department of Education (collectively, “Defendants”)
and the following Department officials: Mary Ellen Elia, the State Commissioner of Education,
Christopher Suriano, the Assistant Commissioner of Special Education, Joanne LaCrosse,
Coordinator of Special Education Policy and Professional Development, Noel Granger, Supervisor
of Program Development and Support Services, and Jackie Bumbalo, Coordinator of Upstate
Regional Special Education Quality Assurance (collectively, “Individual Defendants”) pursuant
to the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et
seq., Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., Section
504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794, and 42 U.S.C. § 1983 (“Section
1983”). On October 12, 2021, non-party Gina DeCrescenzo, P.C. (“DeCrescenzo”) sent a letter
to the Parties seeking to assert a charging lien pursuant to N.Y. Judicial Law § 475 upon the
settlement proceeds of the instant litigation. (See ECF No. 134.)
For the following reasons, Plaintiff’s motion to reject DeCrescenzo’s charging lien as
invalid is GRANTED in part and DENIED in part. Plaintiff’s motion is GRANTED as to
Plaintiff’s request to deem the lien as waived and DENIED in all other respects.
BACKGROUND
In 2012, Plaintiff engaged Ms. Gina DeCrescenzo to represent her and her son N.A. in an
impartial due process hearing (“Impartial Hearing”) before a hearing officer (“Impartial Hearing
Officer”) pursuant to the IDEA to seek relief for tuition and related expenses for N.A.’s education
for the 2011–2012, 2012–2013, and 2013–2014 school years. (Memorandum of Law in Support
of Plaintiff’s Motion to Reject as Invalid the Charging Lien (“Pl.’s Mem.”), ECF No. 145, at 4.)
At issue in the administrative proceedings was whether the District was required to pay for N.A.’s
tuition at Hawk Meadow Montessori School (“Hawk Meadow”) because the District had failed to
provide free and appropriate public education for N.A., and, if so, whether Hawk Meadow was an
appropriate alternative. (Id.) The Impartial Hearing Officer ruled against Plaintiff on two of the
three school years by finding that the District offered N.A. a free and appropriate education for the
2011–2012 and 2013–2014 school years. (Id. at 5.) Plaintiff and DeCrescenzo executed a
subsequent retainer agreement to engage DeCrescenzo for the appeal. (See Gina DeCrescenzo,
P.C.’s Memorandum of Law in Opposition to Plaintiff Connie Avaras’ Motion to Reject as Invalid
(“Opp.”), ECF No. 153, at 4.) On August 10, 2015, the Office of State Review affirmed the
Impartial Hearing Officer’s decision. (Pl.’s Mem. at 5.) DeCrescenzo’s representation terminated
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shortly after the August 10, 2015 decision after DeCrescenzo sent Plaintiff a copy of the decision
and discussed it with her. (Opp. at 4.)
On December 8, 2015, Plaintiff commenced the instant action pro se 1 seeking judicial
review of the State Review Officer’s decision.
(ECF No. 2.)
The District also brought
counterclaims which sought judicial review of the Impartial Hearing Officer’s finding that the
District failed to provide a free appropriate public education for N.A. for the 2012–2013 school
year.
Plaintiff has two other separate actions against Defendants before this Court in connection
with her older son A.A.’s education: Case Nos. 15-cv-2042 and 18-cv-6964. In Case No. 15-cv2042, on October 9, 2020, DeCrescenzo filed a third-party complaint-in-intervention seeking to
enforce a notice of charging lien served on the Parties in 2017. By March 9, 2021, Plaintiff and
DeCrescenzo filed their briefing papers on Plaintiff’s motion to dismiss DeCrescenzo’s complaintin-intervention and to reject the charging lien.
On October 8, 2021, Plaintiff and Defendants submitted a settlement stipulation to globally
settle all three actions between the Parties before this Court. (ECF No. 133.) The Parties stipulated
to settle the instant action for $200,000, Case No. 18-cv-6964 for $200,000, and Case No. 15-cv2042 for $100,000—with $20,000 of the settlement funds paid to Plaintiff and $80,000 withheld
pending the final resolution of DeCrescenzo’s assertion of lien. (Id.) On October 13, 2021, the
District filed a letter with this Court stating that the Defendant received a letter from DeCrescenzo
on October 12, 2021 informing “for the first time” of DeCrescenzo wishes to assert a lien for
unpaid fees and expenses against the settlement funds in the instant action. (See ECF No. 134.)
DeCrescenzo alleges Plaintiff owes approximately $85,500 in legal fees for matters concerning
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Plaintiff has since retained counsel. (ECF No. 96.)
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N.A. as of October 12, 2021. (Id.) On October 14, 2021, this Court held a telephone conference
during which the Court granted Plaintiff leave to file the instant motion.
On October 26, 2021, the Parties filed a superseding settlement stipulation in which for the
instant action the Defendants agreed to pay Plaintiffs $200,000 as settlement amount with
$100,000 temporarily withheld pending final determination with respect to the validity of the
charging lien asserted by DeCrescenzo. (ECF No. 139.) On October 29, 2021, this Court approved
of the global settlement stipulation. (ECF No. 140.)
On November 15, 2021, Plaintiff moved to reject as invalid the charging lien asserted by
DeCrescenzo. (ECF No. 145.) In support, Plaintiff submitted a memorandum of law and two
declarations from Plaintiff Connie Avaras and her counsel Tai H. Park. (ECF Nos. 145 & 146.)
DeCrescenzo opposed the motion and filed a declaration in support of her opposition. (ECF No.
153.) Plaintiff submitted a reply memorandum of law and a second declaration of Tai H. Park in
response. (ECF Nos. 148 & 149.)
DISCUSSION
Plaintiff seeks to reject as invalid DeCrescenzo’s charging lien on the grounds that (i) the
charging lien is inapplicable to the proceeds of the federal litigation, (ii) DeCrescenzo is not an
“attorney of record,” (iii) her services did not contribute to the creation of the settlement fund, (iv)
she waived enforcement of the lien, and (v) that the charging lien is not equitable, fair, or
reasonable. (See Pl.’s Mem.) DeCrescenzo responds that (i) the charging lien applies to the cause
of action in this civil action, (ii) her appearance in the underlying administrative proceeding
qualifies her as “attorney of record,” (iii) the work done in the underlying administrative
proceedings contributed to Plaintiff’s settlement proceeds of the instant action, (iv) there was no
waiver of the lien, (v) the settlement agreement included provision for attorneys’ fees for
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DeCrescenzo’s work, (vi) the enforcement of the lien is equitable, and (vii) that the lien should be
established through an “account stated” theory. (See Opp.)
Below, the Court considers the validity of the charging lien and, if valid, whether the
enforcement of the lien was waived by DeCrescenzo’s actions.
I.
Validity Of Charging Lien
The Court first turns to the issue of whether there is a valid charging lien on the instant
civil action. “A charging lien is a security interest in the favorable result of litigation, giving the
attorney [an] equitable ownership interest in the client’s cause of action and ensuring that the
attorney can collect [her] fee from the fund [she] has created for that purpose on behalf of the
client.” Charnow v. Charnow, 134 A.D.3d 875, 876 (2d Dep’t 2015) (citation omitted). New
York Judiciary Law § 475 (“Section 475”) “governs attorneys’ charging liens in federal courts
sitting in New York.” Itar-Tass Russ. News Agency v. Russ. Kurier, Inc., 140 F.3d 442, 448 (2d
Cir. 1998). Section 475 provides:
From the commencement of an action, special or other proceeding in any court or before a
state, municipal or federal department . . ., the attorney who appears for a party has a lien
upon his or her client’s cause of action, claim or counter claim, 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. Jud. § 475. The charging lien exists “[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,” id., but it “only attaches when proceeds from an identifiable fund are created by an
attorney’s own efforts in the action or proceeding,” In re Air Crash at Belle Harbor, No. 02-cv4758 (RWS), 2006 WL 3247675, at *2 (S.D.N.Y. Nov. 9, 2006).
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For the reasons set forth below, the Court finds that DeCrescenzo has a valid charging lien
on the instant action.
a. Whether DeCrescenzo Is An “Attorney Of Record”
As the Second Circuit and other courts applying New York law have made clear, a charging
lien “is for the benefit of an ‘attorney of record’ only.” Itar-Tass, 140 F.3d at 450 (collecting
cases). Thus, “before an attorney can be granted a lien pursuant to [Section 475], he or she must
have appeared for the client by ‘participating in a legal proceeding on the client’s behalf or by
having his [or her] name affixed to the pleadings, motions, records, briefs, or other papers
submitted in the matter.’” Picciolo v. State, 287 A.D.2d 721, 722 (2d Dep’t 2001) (quoting
Cataldo v. Budget Rent A Car Corp., 226 A.D.2d 574, 574 (2d Dep’t 1996)). An attorney of record
who has been discharged by her client “maintains . . . her right to enforce the statutory lien,” so
long as her “representation terminates upon mutual consent, and there has been no misconduct, no
discharge for just cause, and no unjustified abandonment by the attorney.” CPMI, Inc. v. Kolaj,
137 A.D.3d 953, 955–56 (2d Dep’t 2016) (citation omitted); accord Klein v. Eubank, 87 N.Y.2d
459, 464 (1996). Thus, “an attorney need not be counsel of record at the time the judgment or
settlement fund is created in order to be entitled to the lien afforded by Judiciary Law § 475,”
Klein, 87 N.Y.2d at 462.
Plaintiff argues that DeCrescenzo does not qualify as an “attorney of record” under Section
475 because DeCrescenzo “never appeared in the instant action” and her “only involvement was
in connection with the administrative proceedings before the IHO and the SRO.” (Pl.’s Mem at
12–13.) DeCrescenzo argues that she was an “attorney of record” within the meaning of Section
475 because “it was enough that Ms. DeCrescenzo appeared in the underlying administrative
proceedings.” (Opp. at 8.)
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“Under very specific circumstances, courts may grant charging liens on proceeds in actions
where the moving attorney did not render legal services where a subsequent action ‘in logical
sequence’ involved the same claims.” Ramgoolie v. Ramgoolie, No. 16-CV-3345 (VEC)(SN),
2020 WL 1989292, at *5 (S.D.N.Y. Apr. 27, 2020) (citing Sellick v. Consol. Edison Co. of New
York, Inc., 15-cv-9082 (RJS), 2017 WL 1133443, at *5 (S.D.N.Y. Mar. 23, 2017)). But Plaintiff
argues that the logical sequence exception is inapplicable to DeCrescenzo because her
performance “led to a net loss.” (Pl.’s Mem. at 13–14.) Plaintiff claims that the logical sequence
exception to the attorney of record requirement only applies where there was success in the
underlying proceeding and that “there is no ‘logical sequence’ between Plaintiff’s loss in the
administrative proceeding and this litigation.” (Pl.’s Mem. at 14.)
The Court is not convinced by Plaintiff’s confinement of the “logical sequence” exception
to “successful” underlying proceedings only. Rather, this Court agrees with the reasoning in
Sellick v. Consol. Edison, Co. of New York, Inc., where the court granted a Section 475 charging
lien over attorneys’ fees collected out of settlement of a federal lawsuit after finding the “federal
suit was of a logical sequence from EEOC proceeding, since a Title VII plaintiff ‘must first exhaust
[her] administrative remedies by ‘filing a timely charge with the EEOC or with a [s]tate or local
agency with authority to grant or seek relief from such practice.’’” 2017 WL 1133443, at *5 (citing
Neimark, 7 A.D.2d at 934 and Roth v. Farmingdle Pub. Sch. Dist., No. 14-cv-6668, 2017 WL
395211, at *9 (E.D.N.Y. Jan. 30, 2017)).
In this case, N.Y. Educ. Law § 4404 provides that any determination by an Impartial
Hearing Officer shall be reviewed by a State Review Officer, and “any final determination or order
of a state review officer . . . may only be reviewed in a proceeding brought in the supreme court
. . . or in the United States district court.” N.Y. Educ. Law § 4404. Hence, similar to how a Title
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VII plaintiff must first exhaust her administrative remedies through EEOC proceedings, Plaintiff
here must first have exhausted her administrative remedies by asserting her claims before the
Impartial Hearing Officer and by seeking review by the Office of State Review before bringing
the instant action in federal court. The doctrine of exhaustion of administrative remedies does not
require a party to have been successful in the underlying proceedings—rather, it only requires that
parties first exhaust the available administrative remedies. As such, applying the Sellick reasoning
and in conformity with this Court’s recent decision in Avaras v. Clarkstown Cent. Sch. Dist., No.
15 CIV 2042 (NSR), 20201 WL 5180832 (S.D.N.Y. Nov. 8, 2021), the Court finds the instant
action is in “logical sequence” with the underlying administrative proceedings before the Impartial
Hearing Officer and the State Review Officer.
Additionally, DeCrescenzo has sufficiently pled that she is an attorney of record in the
underlying administrative proceedings. Under Section 475, an attorney “must have appeared for
the client by participating in a legal proceeding on the client’s behalf or by having [her] name
affixed to pleadings, motions, records, briefs or other papers submitted in the matter.” Picciolo v.
State, 287 A.D.2d 721, 722 (2d Dep’t 2001). During the Impartial Hearing, DeCrescenzo prepared
and filed a “Demand for Due Process” administrative pleading and represented Plaintiff at fourand-a-half days of hearing over the course of nine hearing dates. (Opp. at 2–3.) Before the Office
of State Review, DeCrescenzo drafted an answer with cross-appeal and a memorandum of law.
(Id. at 4.) Thus, the Court finds that DeCrescenzo sufficiently meets the attorney of record
requirement of Section 475.
b. Whether DeCrescenzo’s Efforts Contributed To Settlement
Plaintiff contests DeCrescenzo’s efforts contributed to the creation of the settlement fund.
Plaintiff asserts that DeCrescenzo’s “unsuccessful efforts affirmatively handicapped Plaintiff from
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obtaining any remedy” and prejudiced Plaintiff’s chances of success. (Pl.’s Mem. at 15, 19.)
Further, Plaintiff claims DeCrescenzo’s involvement had “nothing to do with driving the
settlement” and instead that it was the IDEA pendency and stay put laws claims asserted by
Plaintiff’s new counsel, which DeCrescenzo failed to assert, that was key in driving global
settlement of the three cases. (Id. at 16–17.) Plaintiff claims the underlying record could have
been easily established pro se, without assistance of counsel. (Id. at 20.) DeCrescenzo maintains
her work in the underlying administrative proceeding contributed to Plaintiff’s settlement proceeds
in the instant action. (Opp. at 8–11.) DeCrescenzo notes that her advocacy led to Plaintiff
prevailing on the award of the 2012–2013 school year tuition at the Office of State Review level.
(Id. at 9.) Further, DeCrescenzo claims she could not have raised the pendency issues in the
Impartial Hearing because such payment was not yet accrued at the time of her representation. (Id.
at 10–11.)
The Court finds Plaintiff’s explanation of the considerations driving global settlement to
be unavailing. The text of Section 475 is clear that an attorney has a “lien upon [her] client’s cause
of action . . . , which attaches to a . . . settlement.” N.Y. Jud. Law § 475; see also Sellick, 2017
WL 1133443, at *4. DeCrescenzo represented Plaintiff before both the Impartial Hearing Officer
and the Office of State Review in seeking relief regarding N.A.’s education for the 2011–2012,
2012–2013, and 2013–2014 school years. Thus, DeCrescenzo’s lien was upon Plaintiff’s claims
for relief for tuition and other expenses associated with N.A.’s education during those school years.
The Parties have explicitly allocated $200,000 of the global settlement to dismiss the instant action.
(ECF No. 139.) This settlement amount extinguishes the causes of action in the instant action and
is thus subject to the lien. See In re Shirley Duke Assocs., 611 F.2d 15, 28 (2d Cir. 1979) (“In the
event of settlement, the attorney’s lien attaches to the fund representing the cause of action
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extinguished by the settlement.”) Therefore, the Court finds that DeCrescenzo has a valid Section
475 charging lien upon the settlement funds of the instant action.
II.
Waiver of Enforcement of Lien
Finding the lien validly asserted, the Court next turns to whether the enforcement of the
lien was waived. “[T]he right to enforce . . . a [Section 475] lien will be waived by any action
inconsistent with an intent to enforce the lien.” Petition of Harley & Browne, 957 F. Supp. 44, 49
(S.D.N.Y. 1997) (citing Kaplan v. Reuss, 495 N.Y.S.2d 404, 407 (1984)). This “waiver rule is
intended to prevent other parties from being misled by an attorney’s actions or inaction.” Kaplan,
495 N.Y.S.2d at 407. Therefore, “if the attorney knowingly allows the proceeds to pass into the
hands of the client or another party without asserting his or her rights, or if the attorney fails to
enforce the lien within a reasonable time, the lien will be deemed waived and the attorney relegated
to a plenary action against the client for any fees.” Id.
Plaintiff argues that DeCrescenzo’s unreasonable delay in asserting the lien bars
enforcement of the lien. (Pl.’s Mem. at 21.) Plaintiff notes that DeCrescenzo “has known about
the Instant Case since its inception, and as of February 2021, she knew about the settlement
negotiations to resolve this case along with the two cases . . . [y]et she remained silent about her
purported lien.” (Id.) Notably, Plaintiff compares DeCrescenzo’s inaction in the instant action
with her vigorous litigation in asserting a Section 475 charging lien in the Parties’ case relating to
Plaintiff’s son A.A., Case No. 15-cv-2042. (Id.)
DeCrescenzo does not contest or otherwise attempt to explain her delay in asserting this
lien. Rather, she makes three arguments that are unconvincing to the Court. First, she argues that
the Court should not find a waiver because Plaintiff was well-aware of her unpaid legal fees and
was repeatedly reminded of her outstanding fees. (Opp. at 11.) But, as laid out in Ms. Gina
DeCrescenzo’s declaration (Gina M. DeCrescenzo’s Declaration (“DeCrescenzo Decl.”), ECF No.
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153), the communications with Plaintiff regarding this lien were in 2015 and the last billing
statement was sent in 2017—years predating the February 12, 2021 teleconference before this
Court during which DeCrescenzo was present when the Parties discussed reaching global
settlement with regards to all three cases. The rule of waiver “is intended to prevent other parties
from being misled by an attorney’s actions or inaction.” Kaplan, 495 N.Y.S.2d at 407. The Court
agrees with Plaintiff that DeCrescenzo’s failure to assert the charging lien in the instant litigation
until October 12, 2012 when a long-negotiated settlement has been reached, despite having notice
of ongoing settlement discussions, is misleading as to DeCrescenzo’s intent to enforce the lien.
(See Pl.’s Mem. at 1.) DeCrescenzo’s unexplained delay is particularly misleading in light of her
strong efforts since June 2020 to intervene and assert a charging lien upon Plaintiff’s settlement
proceeds in Case No. 15-cv-2042. The Parties reasonably relied upon DeCrescenzo’s actions to
signify that she intended only to assert a charging lien upon one of the three cases being negotiated
for settlement.
Second, DeCrescenzo attempts to distinguish Kaplan and Harley & Browne on the basis
that those cases involved attorneys who asserted liens after the proceeds of the settlement were
already distributed. (Opp. at 11–12.) But Kaplan makes clear that waiver may occur “if the
attorney knowingly allows the proceeds to pass into the hands of the client . . . or if the attorney
fails to enforce the lien within a reasonable time.” 495 N.Y.S.2d at 407 (emphasis added).
Although DeCrescenzo sought to assert her lien prior to the disbursement of settlement proceeds,
the Court nonetheless finds the attorney waived enforcement of the lien by failing to assert the lien
within a reasonable time.
DeCrescenzo should have known about the existence of a charging lien in December 2015
when Plaintiff filed for judicial review of the underlying administrative decisions. Further, by
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February 2021 at the latest, DeCrescenzo was aware of the ongoing global settlement negotiations
between parties that would likely lead to the disposition of the instant action. Indeed, DeCrescenzo
attended the February 12, 2021 teleconference before the Court where the Parties notified the Court
they have reached a global settlement. During the teleconference, DeCrescenzo only sought to
intervene and assert a lien upon Case No. 14-cv-2042 and did not mention any charging lien upon
the instant action. Yet, DeCrescenzo waited until October 12, 2021, after the Parties submitted
their proposed global settlement agreement, to assert the lien. Even assuming the delay tolled from
February 12, 2021, an eight-month delay in asserting her lien is unreasonable. The Second Circuit
has generally held that an eight- to eighteenth-month delay in an attorney’s request to intervene
after the applicant knew or should have known of an interest is untimely. See, e.g., Butler,
Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 182–83 (2d Cir. 2001) (finding a one-year delay
in requesting to intervene after realizing threat to applicant’s charging lien as untimely); In re
Holocaust Victim Assets Litig., 225 F.3d 191 (2d Cir. 2000) (eight-month delay); Catanzano v.
Wing, 103 F.3d 223, 232 (2d Cir. 1996) (eighteen-month delay); United States v. Pitney Bowes,
Inc., 25 F.3d 66 (2d Cir. 1994) (untimely delay after constructive knowledge of interest for at least
fifteen months and actual knowledge of eight months prior to filing motion to intervene). Notably,
where an applicant’s late intervention would prejudice the parties and their settlement negotiations,
the Second Circuit has held that an eight-month delay is untimely. See In re Holocaust Victim
Assets Litig., 224 F.3d at 199 (“intervention at this late stage would prejudice the existing parties
by destroying their Settlement and sending them back to the drawing board”); Pitney Bowes, Inc.,
25 F.3d at 72 (noting applicant “did not attempt to intervene at any time” during eight months of
negotiations). Here, DeCrescenzo is in a worst position than the applicants in all the above-cited
Second Circuit cases. Former counsel has yet to move to intervene in the instant action and has
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only sent a notice of lien to the parties. Former counsel did not seek to assert the lien at any time
prior to October 12, 2021, when the parties submitted their global settlement proposal. Former
counsel failed to timely assert her charging lien despite having knowledge of the existence of a
case that commenced in 2015 and where, as the record clearly reflects, she knew the parties were
negotiating a global settlement involving the disposition of this particular case.
Third, DeCrescenzo suggests that waiver must be voluntary and that she never made an
affirmative statement of waiver. (Opp. at 12–13.) The Court is unpersuaded by this argument. As
case law makes clear, waiver occurs through an attorneys’ actions that are inconsistent with the
intent to enforce the lien. See Harley & Browne, 957 F. Supp. at 49. Whether DeCrescenzo in
fact intended to waive the enforcement or not, her actions were clearly inconsistent with an intent
to enforce such lien, particularly in light of her actions in Case No. 15-cv-2042. Thus, the Court
finds that DeCrescenzo waived the enforcement of her Section 475 charging lien upon Plaintiff’s
settlement proceeds in the instant action.
Because the Court finds that the enforcement of the lien was waived, the Court does not
need to go into an analysis of the proper amount of the lien.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion to reject DeCrescenzo’s charging lien as
invalid is GRANTED in part and DENIED in part. Plaintiff’s motion is GRANTED as to
Plaintiff’s request to deem the lien as waived and DENIED in all other respects. Although the
Court finds that DeCrescenzo’s Section 475 charging lien is validly asserted over Plaintiff’s
settlement funds from the instant action, the Court concludes that the enforcement of the lien was
waived due to DeCrescenzo’s unreasonable delay in asserting the lien. The Clerk of Court is
respectfully directed to terminate the motion at ECF No. 145.
Dated:
December 2, 2021
White Plains, New York
SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge
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