Rogers & Haggerty, Inc. v. Island Dock Lumber, Inc.

Gabrielli, J. Appeal by plaintiff’s former attorney from an order of the Supreme Court, Special Term, entered in Ulster County, which granted respondent’s motion for substitution of attorneys and the fixation of appellant’s fees upon his filing of an appropriate affidavit of services rendered upon the termination of the action. Respondent does not deny that the appellant rendered legal services in the action but asserts that the retainer arrangement was on a contingent basis. The former attorney denies this but fails to state what his arrangement was with the plaintiff basing his opposition to the motion on his blanket denial of a contingent fee arrangement, without disclosing any basis for the amount he seeks. No hearing was sought by the appellant. An examination of the record reveals that a large portion of the amount demanded by the appellant is for services rendered in matters other than the present action. In addition, we would observe that he failed to submit any statement or affidavit detailing the amount of services performed. A client has the right to discharge his attorney at any time provided that the outgoing attorney is protected by the imposition of reasonable conditions for the protection of any lien he may have upon the proceeds of the action (Friedman v. Gordon, 260 App. Div. 1023, affd. 285 N. Y. 630; Marrello v. Gaputo, 4 A D 2d 768; Kertatos v. Ferreri, 17 Mise 2d 617). Upon the state of the record, the appellant will be protected by a declaration that he has a lien upon the proceeds of the action, the amount of which shall be fixed upon proper proof of services rendered at the time fixed in the order appealed from. Order modified, on the law and the facts, so as to provide that the appellant has a lien for the reasonable services performed by him, in an amount to be determined in accordance with the order appealed from, and, as so modified, affirmed, without costs. Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.