GURVITSCH v. Shmuel Klein, Nonparty Appellant. (1997)

In an action for a divorce and ancillary relief, Shmuel Klein appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated July 30, 1996, as directed him to pay the plaintiff's former attorney, Tomas Greenberger, fees in the amount of $4,250.

 ORDERED that, on the court's own motion, the order to show cause by Tomas Greenberger to collect his fee, and the supporting and opposing affirmations, are converted into a petition and pleadings of a special proceeding pursuant to Judiciary Law § 475 to enforce Tomas Greenberger's charging lien against the proceeds of the settlement of the matrimonial action (see, Flores v. Barricella, 123 A.D.2d 600, 506 N.Y.S.2d 885;  Matter of Reich v. Power, 30 A.D.2d 925, 294 N.Y.S.2d 346);  and it is further,

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 The record indicates that Tomas Greenberger had a charging lien for legal services rendered because he appeared as the attorney of record for the plaintiff in the matrimonial action (see, Rodriguez v. City of N.Y., 66 N.Y.2d 825, 498 N.Y.S.2d 351, 489 N.E.2d 238).   The amount of Greenberger's fee was previously determined, after a hearing, when it was also determined that Greenberger's dismissal was without cause.   The lien was not affected by the settlement of the action by the appellant, who is the plaintiff's incoming attorney, and it was enforceable through a special proceeding pursuant to Judiciary Law § 475 against the appellant, who was in possession of a portion of the settlement proceeds (see, People v. Keeffe, 50 N.Y.2d 149, 428 N.Y.S.2d 446, 405 N.E.2d 1012;  Cohen v. Cohen, 160 A.D.2d 571, 554 N.Y.S.2d 525;  Flores v. Barricella, 123 A.D.2d 600, 506 N.Y.S.2d 885;  Kaplan v. Reuss, 113 A.D.2d 184, 495 N.Y.S.2d 404).

MEMORANDUM BY THE COURT.