MOODY v. Richard B. Alderman, Respondent.  (Appeal No. 1.) (2008)

Defendant appeals from an order granting respondent's motion for a charging lien pursuant to Judiciary Law § 475.   Respondent represented defendant in the underlying matrimonial action in Supreme Court, resulting in attorney's fees of $117,841.06, and he then withdrew from his representation of defendant.   Defendant, appearing pro se, appealed from Supreme Court's order entered in the underlying action, and we modified the order by awarding defendant $8,000 as her equitable share of a 2001 Jeep Grand Cherokee and remitted the matter to Supreme Court to enforce a federal affidavit of support executed by plaintiff (Moody v. Sorokina, 40 A.D.3d 14, 830 N.Y.S.2d 399, appeal dismissed 8 N.Y.3d 978, 836 N.Y.S.2d 547, 868 N.E.2d 231, 9 N.Y.3d 887, 842 N.Y.S.2d 766, 874 N.E.2d 730).   We conclude that Supreme Court properly granted respondent's motion for a charging lien against the award of $8,000 in our prior order.

 “A charging lien is ․ available to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client” (Zelman v. Zelman, 15 Misc.3d 372, 375, 833 N.Y.S.2d 375).   The title to the Jeep was in plaintiff's name, and defendant's interest in the value of the vehicle was not determined until this Court awarded defendant $8,000 as her equitable share in the vehicle (see Domestic Relations Law § 236[B][5][a] ).   Thus, that award represents proceeds created by respondent's efforts in the matrimonial action rather than the value of an interest “already held by [defendant]” (Zelman, 15 Misc.3d at 375, 833 N.Y.S.2d 375;  cf. Matter of Desmond v. Socha, 38 A.D.2d 22, 24, 327 N.Y.S.2d 178, affd. 31 N.Y.2d 687, 337 N.Y.S.2d 261, 289 N.E.2d 181;  Theroux v. Theroux, 145 A.D.2d 625, 628, 536 N.Y.S.2d 151).

 We further conclude that respondent's withdrawal from representation before the issuance of our order awarding defendant $8,000 as her equitable share in the vehicle does not deprive respondent of his right to enforce the charging lien (see Klein v. Eubank, 87 N.Y.2d 459, 462, 640 N.Y.S.2d 443, 663 N.E.2d 599, rearg. denied 87 N.Y.2d 1056, 644 N.Y.S.2d 149, 666 N.E.2d 1063;  see also Matter of Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658, 602 N.Y.S.2d 788, 622 N.E.2d 288, lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 378, 672 N.E.2d 604;  Ferraioli v. Ferraioli, 8 A.D.3d 163, 164, 779 N.Y.S.2d 72, lv. denied 3 N.Y.3d 608, 786 N.Y.S.2d 811, 820 N.E.2d 290;  Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 219, 651 N.Y.S.2d 525).  “[A]n 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, 640 N.Y.S.2d 443, 663 N.E.2d 599).   In addition, the fact that defendant and respondent have agreed to arbitrate the amount of total fees owed to respondent does not preclude enforcement of the charging lien inasmuch as the remedies available to respondent to recover the value of his legal services are cumulative rather than exclusive (see e.g. Butler, Fitzgerald & Potter, 235 A.D.2d at 218-219, 651 N.Y.S.2d 525).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: