Ralph J. Vitiello, Respondent-Respondent. (Appeal No. 1.) v. << (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Kyle CLARK, Petitioner-Appellant. Ralph J. Vitiello, Respondent-Respondent. (Appeal No. 1.)

Decided: May 07, 1999

PRESENT: DENMAN, P.J., LAWTON, HAYES, PIGOTT, JR., and SCUDDER, JJ.

Aaron Mark Zimmerman, Zimmerman Law Office, Syracuse, for petitioner-appellant. Joseph S. Cote, Cote & Limpert, Syracuse.

Supreme Court erred in determining that respondent, petitioner's former attorney, has a valid charging lien without conducting a hearing on the issue whether he was discharged for cause (see, Teichner v. W & J Holsteins, 64 N.Y.2d 977, 979, 489 N.Y.S.2d 36, 478 N.E.2d 177). We therefore modify the order in appeal No. 1 by vacating the determination that respondent has a valid charging lien, and we remit the matter to Supreme Court for a hearing on that issue.

Petitioner further contends that the court erred in denying his motion to renew or reargue. Because no new evidence was submitted, the motion was in effect one to reargue, and no appeal lies from an order denying reargument (see, Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5).

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings.

MEMORANDUM:

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