RAMIREZ v. [And a Third-Party Action]. (2009)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about July 30, 2007, which, to the extent appealed from as limited by the briefs, granted plaintiff's former counsel's motion for a statutory lien for legal fees and disbursements, unanimously modified, on the law, and that portion of the motion granted only to the extent of directing a hearing on the issue of entitlement to legal fees and disbursements, to be held on 30 days' notice by former or present counsel for plaintiff, and otherwise affirmed, without costs.

The underlying personal injury action sought damages for serious injuries allegedly sustained by plaintiff while working at a construction site in 2000.   On the eve of trial, the Trolman firm moved to be relieved as plaintiff's counsel and for the imposition of a statutory lien for legal fees and disbursements.

 It is well settled that “where an attorney's representation terminates and there has been no misconduct, no discharge for just cause and no unjustified abandonment by the attorney, the attorney's right to enforce the statutory charging lien is preserved” (Klein v. Eubank, 87 N.Y.2d 459, 464, 640 N.Y.S.2d 443, 663 N.E.2d 599 [1996];  see also Delaj v. Jameson, 51 A.D.3d 450, 855 N.Y.S.2d 898 [2008], lv. dismissed 11 N.Y.3d 816, 868 N.Y.S.2d 589, 897 N.E.2d 1072 [2008] ).   However, the moving papers did not give any indication of the ground upon which the relief was sought, stating only that “it became clear to us that we could not proceed as [plaintiff's] attorneys.”   This vagueness was not cured by counsel's reference, during argument, to an unspecified ethical constraint.   In the absence of an adequate showing of the grounds for the relief sought, an evidentiary hearing must be held to determine whether withdrawal was with just cause (Klein, 87 N.Y.2d at 464, 640 N.Y.S.2d 443, 663 N.E.2d 599;  Shalom Toy v. Each & Every One of Members of N.Y. Prop. Ins. Underwriting Assn., 239 A.D.2d 196, 198, 658 N.Y.S.2d 1 [1997] ).