Micro-Spy, Inc., et al., respondents, v. Marietta Small, etc., defendant;  Ernest Hammer, etc., nonparty-appellant. (2010)

Submitted-November 23, 2009

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, nonparty Ernest H. Hammer, appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated September 19, 2008, as denied, with prejudice, his motion to fix his legal fees in the principal sum of one third of the amount recovered plus $15,000 for prosecution of an appeal, and to impose a charging lien in the amount of such fees, and (2) from an order of the same court dated January 30, 2009, which denied his motion, in effect, for leave to reargue.

ORDERED that appeal from the order dated January 30, 2009, is dismissed, without costs or disbursements, as no appeal lies from an order denying leave to reargue;  and it is further,

ORDERED that the order dated September 19, 2008, is modified, on law, by deleting the provision thereof denying the appellant's motion with prejudice, and substituting therefor a provision denying the motion without prejudice to any right to commence a separate plenary action to recover, in quantum meruit, for any legal fees due and owing to him;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The appellant concedes that at no time did he enter into a written retainer agreement with the plaintiffs or file a contingency fee agreement with the Office of Court Administration (hereinafter OCA) pursuant to 22 NYCRR 691.20(a)(1).   In July 2008, the appellant moved to fix the amount of his legal fees and expenses in the principal sum of one third of the amount recovered plus the sum of $15,000 for prosecution of the appeal, and to impose a charging lien in the amount of such fees against the settlement proceeds.   The Supreme Court denied his motion “with prejudice,” and the appellant thereafter moved, in effect, for leave to reargue on the ground that the denial of his motion should have been without prejudice to any right to commence a separate plenary action against the plaintiffs herein to recover any legal fees due and owing to him.   The Supreme Court denied that motion.

As it is undisputed that the appellant did not comply with 22 NYCRR 691.20(a)(1), pursuant to which attorneys must file retainer agreements with the OCA in, inter alia, actions to recover damages for personal injuries and property damage, he is not entitled to recover a contingency fee (cf.   Fuentes v. Brookhaven Mem. Hosp., 43 AD3d 992, 994;  Matter of Seigel, 300 A.D.2d 668, 669).

However, under the circumstances, the appellant may be entitled, in a separate plenary action, to recover, in quantum meruit, for the reasonable value of his services (see Law Off. of Howard M. File, Esq., P.C. v Otashko, 60 AD3d 643;  Haser v. Haser, 271 A.D.2d 253, 255;  Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 218-219).   We take no position on the merits of such an action.

MASTRO, J.P., BALKIN, BELEN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court