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Carmichael v. Hillview Owners Corp.
Carmichael v Hillview Owners Corp. 2024 NY Slip Op 30765(U) March 11, 2024 Supreme Court, New York County Docket Number: Index No. 152936/2021 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
INDEX NO. 152936/2021 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M J ustice ---------------------------------------- ---- - - -- - - - --X 152936/2021 INDEX NO. NORA CARMICHAEL, MOTION DATE 07/1 4/2023 Plaintiff, MOTION SEQ. NO. 004 • V.
HILLVIEW OWNERS CORP., MIDBORO MANAGEMENT, LLC,JOHN BLAHNIK, TERRI THRASH. ELITE H. DECISION + ORDER ON RENOVATI ON, LLC, BUILDINWOOD LLC, MOTION
Defendant.
- - - - - - - - - - -- - - - -- --·-----------X
HILLVIEW OWNERS CORP . MIDBORO MANAGEMENT, Third-Party LLC, TERRI THRASH Index No. 595432/202 1
Plaintiff,
-against-
BUI LDINWOOD LLC
Defendant. ·-------------· -- - X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 81, 82, 83. 84, 85, 86, 87, 88, 89, 90, 91 , 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108 ATTORN EY - were read on this motion to/for DISQUALIFY/RELI EVE/SUBSTITUTE/WITHDRAW
1 Upon the foreffoin° t- e documents there beilu! ._. no op1Josition and o<>ood cause having ~ .., been
shown, Caner Demirayuk, Esq. 's ("Movant") motion to be relieved as counsel for Plaintiff Nora
Carmichael ("Plaintiff') is granted. Movant's request for a charging lien on any future settlement
is also granted. The cross-motions of Defendant/Third-Party Defendant Buildinwood, J.T.C
("13uildinwood") and Defendant John Blahn ik ("'i3lalmik'') seeking an Order enforcing an alleged
1 \\~1ile Defendant John Rlahnik filed an ;\ ffinnation titled " Atfomation in Support of Dcfondanl Blahnik's Cross Motion and In Opposition to Plaintiff's Order to Show Cause," the Blahn ik /\llinnation makes no argument in opposilion lo PlaintilT s molion. 15293612021 CARMICHAEL, NORA vs. HILLVIEW OWNERS CORP. Page 1 of 5 Motion No. 004
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INDEX NO. 152936/2021 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
stipulation of settlement and compelling Plaintiff to execute alleged agreements and releases
provided hy Defendants' counsel, are stayed pursuant to CPI.R 32 1(c).
I. Background and Procedural Ilistorv
Plainti ff commenced this action on March 24, 2001 hy 111ing a Summons and Complaint
against Defendants Ilillvicw Owners Corp., M idboro Management, LLC, Blalmik, Te1Ti Thrash
and Elite H. Renovation, LLC (N YSC EF Doc. I). Subsequently, those defendants filed a Third-
Patty Summons and Comph1illl on May 11, 202 1 against Ruildinwood (NYSCF.F Doc. 20). On
June 22, 202 1, Plaimiff filed an Amended Comp laint naming Buildinwood as a direct defendant
(NYSCEF Doc. 29).
Plainti ffs counsel brought the instant motion lo he relieved as cmmscl on July 18, 2023,
claiming a breakdown in the attorney-client relationship caused by "a di rfhence of opinion as to
lhe handling of this mailer whi ch cannot be reconciled" (NYSCEF Doc. 82 at ii 4). On September
22, 2023 Buildinwood filed a cross-motion for an Order enforcing an alleged stipulation or
settlement (the '·Stipulation o r Selllement") (NYSCEF Doc. 87). Su bsequently, 13lalmik filed a
cross-motion for an Order '·enforcing the Stipulation of Settlement and compelling Plaintiff to
ex.e cute the agreemems and releases provided hy defendants' counse ls" (NYSCEF Doc. 99).
II. Discussion
There being no opp<Jsition, and good cause having been shown, Movant's motion to be
relieved as counsel for Plaintiff is granted . Movant's request for a charging lien cm any future
sett lemenl is a lso granted.
1. Movant's Motion for a Charging Lien is ( iranted
Pursuam to Judiciary I.aw 475, " a charging lien automatically comes into existence,
without notice or fil ing, upon commencement or the action, and it measured by the reasonable
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INDEX NO. 152936/2021 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
value of the attorney's services in the action, unless fixed by agreement" (Resnick v Resnick, 24
AD3d 238,239 [1st Dept 2005]). Funher, the First Department has held that "lwjherc an attorney' s
representation terminates and there has been no misconduct, no d ischarge for just cause and no
unj ustified abandonment by the attorney, the attorney's right to enforce the charging lien is
preserved" (Ramirez v Wi//ow l<idP.e Couniry Club, Inc., 60 AD3d 406 [l s! Dept 2009] quoting
Klein v Eubank, 87 NY2d 459, 464 [1996]).
Herc, there is no dispute that Movant was retained by Plaintiff to prosecute the present
action, and there is no allegation in the record of any misconduct or abandonment on the part of
Movant. As such, Movant has established its entitlement lo a charging lien under Judiciary Law
§475.
Buildinwood and Blahnik's Cross-Motions are Stayed by Operation of CPLR 32 l(c)
The First Department has held that where an attorney's motion to withdraw as counsel is
granted due to disagreements with their cl ient over strategy, as is the case here, "further
proceedings against plaintiff [arc] stayed by operation of CPLR 32 l (c), unti l 30 days after notice
to appoint another attorney lhasl been served" (Fan v Sabin, 125 AD3d 498, 499-500 [l st Dept
2015]). t\s such, Ruildinwood and Blahni k's cross-motions seeking an Order enforcing the
Stipulation of Settlement and compelling Plaintiff to execute alleged agreements and releases
provided by Defendants' counsel is stayed by operation of'CPJ.R 32 l(c).
Accordingly, it is hereby,
ORDERED that Caner Dernirayak. Esg.'s motion to be relieved as counsel for Plaintiff
Nora Carmichael is gramed; and it is further
ORDF.RF.D that Caner Demirayak, Esq. is granted a charging lien against the proceeds of
any settlement in this action; and it is further
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INDEX NO. 152936/2021 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
ORDERED that this charging lien is preserved until such time as the Court, upon settlement
or j udgment, may hear and determine the reasonable va lue of Caner Demirayak, Esq.' services
provided; and it is further
ORDERED that a hearing to determine the reasonable value of such services shall be held
following such settlement or judgment; and it is further
ORD ERED that no settlement or judgment shall be paid or disbursed until the amount of
the charging lien is determined at said hearing; and it is further
ORDERED that Plaintiff Nora Carmichael must inform this Court, wi thin 60 days from
ent1y of this Decision and Order, via correspondence uploaded to NYSCEF and e-mail to SFC-
Part:B-Clcrk(@nvcourts. gov, that she has retained new counsel or has decided to proceed prose.
- result in dismissal o f Plaintiff Nora Carmichael's lawsuit for Failure to abide bv, this Order mav
failure to prosecULc; and it is further
ORDERED that the proceedings and discovery in this matter. as well as the cross-motions
of DefcndantiThird-Party Defendant 13uildinwood, I .J .C and Del'endant John Blahnik arc stayed,
pursuant to CPLR 32 1(c), until 30 days after Plaintiff's notice to appoint another attorney is served,
or Plainti ff notifies the Court that she has decided to proceed prose; and it is further
ORDERED that within 10 days of entry, Caner Demirayak, Esq. shall serve a c-0py of this
Decision and Order upon all parties to this action, including Plainti ff Nora Carmichael, via first -
class mail al their last known business or residential address; and it is further
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INDEX NO. 152936/2021 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
ORDER ED that the parties in this case arc directed to submit a proposed Status Conference
Order to the Court on or before May 14, 2024 via e-mail to SFC-Part33-Clcrk(@11vcourts.gov. If
the parties are unable to agree to a proposed Status Conference Order, the parties are directed to
appear for an in-person status conference with the Court on May 15, 2024 at 9:30 a.m. in 60 Centre
Street, Room 442, New York, New York; and it is futther
ORDERED that the Clerk of' the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Comt.
3111/2024 J l4 "'tj V fl.?, ..- JS c:. DATE · oN. MARY V. ROSADO, J .S.C.
CHECK ONE: CASE DISPOSED x NON ,FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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