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Chana TAUB, Plaintiff, v. Simon TAUB, Defendant.
Upon an application brought on by order to show cause and made returnable before the court on January 5, 2018, David Bellon, Esq. moves for a charging lien against Chana Taub, pursuant to Judiciary Law § 475, and for other related relief.
Upon due consideration of Mr. Bellon's moving papers, the Supreme Court records, Eastern District Bankruptcy Court orders submitted to the court, and the parties' oral argument, the court determines that the application is denied in all respects.
Factual and Procedural Background
Following the prior court's order dated March 7, 2008, which granted the plaintiff a divorce against the defendant (Demarest, J.), on May 24, 2010 the captioned matrimonial action was assigned to this court, and the court thereafter conducted a trial on the issues of equitable distribution, maintenance, child support, and other related matters. The plaintiff, Ms. Taub, was represented by Neil Iovino, Esq. from the outset of the proceedings before this court through to the submission of the post-trial memoranda in February of 2011. This court rendered its findings of fact and conclusions of law upon these matters in a decision and order dated April 22, 2011, and the final judgment of divorce and award of ancillary relief was issued on July 27, 2011.
Also pending while these matrimonial proceedings were on-going was Ms. Taub's Chapter 11 bankruptcy petition in the Eastern District of New York. Chana Taub's petition for bankruptcy relief was filed on July 1, 2008.
At one point, Ms. Taub had sought to keep in place a stay of these divorce proceedings (which stay arose automatically under bankruptcy law). However, the bankruptcy court ruled that the matrimonial trial should proceed to its conclusion, but that any judgment settled pursuant to this court's determination of the matrimonial action was to be enforced in the United States Bankruptcy Court for the Eastern District of New York, as decreed in the order of Judge Elizabeth S. Stong of that court dated August 14, 2009.
Both matters are now long concluded—the divorce action in July, 2011, and a final decree in the bankruptcy case was entered on September 10, 2015 and that case was closed by the court on November 23, 2015.
In this post-judgment application, non-party David Bellon, who was one of several attorneys who represented Chana Taub not in the matrimonial proceedings but in bankruptcy court, is seeking to recover approximately 1.2 million dollars in fees he claims Ms. Taub still owes him for his services in the bankruptcy proceedings.
In pursuit of his fees, Mr. Bellon had made an application on February 5, 2017 to re-open the bankruptcy case for the bankruptcy court to fix the amount of attorney's fees owed to him in connection with his representation of Chana Taub in those proceedings. His application, which was also opposed by Ms. Taub, was denied on March 17, 2017 (Elizabeth S. Stong, U.S. Bankruptcy Judge).
Thus, Mr. Bellon now turns to this court in an attempt to obtain fees he claims Ms. Taub still owes him. His theory for recovery of same within the captioned matrimonial action is that he has a charging lien and he maintains that he is entitled to a lien in the amount of $1,199,971 against Ms. Taub's distributive award.
Mr. Bellon's application must be denied in its entirety as he is not entitled to this relief from this court.
Mr. Bellon has moved this court to fix and enforce a charging lien, pursuant to Judiciary Law § 475, which he claims he has in and against the distributive award Ms. Taub received in the order and judgment made in the captioned matter. Mr. Bellon further claims that he is entitled to an account stated and that the amount due him is already established to be $1,199,971 (based upon his invoice dated 10/22/2015, stated to have been tendered to Ms. Taub without objection). Accordingly, he indicates that no hearing is necessary to fix the amount of the charging lien and that he should be awarded a money judgment thereon in that amount. Additionally and lastly, Mr. Bellon is requesting that the court issue a temporary restraining order enjoining and restraining Ms. Taub and her agents from transferring any real property until his lien is satisfied.
Ms. Taub opposes this application in its entirety and denies that she owes Mr. Bellon any further attorney's fees. She avers that he has been paid for his services. Further, Ms. Taub states that Mr. Bellon only represented her in bankruptcy court, that he never represented her “in divorce court.”
New York's attorney's charging lien is derived from the common law and is now codified in the Judiciary Law.
“A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client's cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client [citations omitted]” (Wasserman v. Wasserman, 119 AD3d 932, 933 [2nd Dept. 2014] ).
The attorney's charging lien was “invented by the courts for the protection of attorneys against the knavery of their clients by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained” (Goodrich v. McDonald, 112 N.Y. 157, 163  ).
“The theory upon which the lien is upheld is that the attorney has, by his skill and labor, obtained the judgment, and that hence he should have a lien thereon for his compensation, in analogy to the lien which a mechanic has upon any article which he manufactures” (Williams v. Ingersoll, 89 N.Y. 508, 517  ).
Section 475 of the Judiciary Law provides, in pertinent part, as follows:
“From the commencement of an action ․ in any court ․ the attorney who appears for a party has a lien upon his or her client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client's favor, and the proceeds thereof in whatever hands they may come ․ The court upon the petition of the client or attorney may determine and enforce the lien.”
(Judiciary Law § 475, emphasis supplied.)
The Court of Appeals has stated that the language in the statute, “the attorney who appears for a party,” “has consistently been held to grant a lien to the attorney of record [citations omitted]” (Rodriguez v. City of New York, 66 NY2d 825, 827  ). And that court looked to see if the movant attorney's name had ever appeared “on any of the pleadings, motion papers, affidavits, briefs or record in plaintiff's action” (id.). Finding no evidence thereof, the Rodriguez court was also not swayed by the movant's assertion that his name was on the filed retainer statement (along with that of the “of counsel” attorney who actually represented the plaintiff at trial and filed all the papers in the action): “That movant's name was filed with the Judicial Conference to reflect his interest in the litigation does not make him an attorney of record any more than it would in the case of filing a trial counsel's name” (Rodriguez at 828).
Here too, in support of his petition, Mr. Bellon asserts that Ms. Taub entered into a litigation retainer agreement with him, and he annexed a copy of the document 1 to his motion papers. While Ms. Taub denies ever seeing or signing this document, it is not necessary to address that matter, because, in any event, as the Second Department has observed, “the mere existence of a retainer agreement is insufficient to create a charging lien pursuant to Judiciary Law § 475. That statute provides that an attorney ‘appear’ for the client, in the sense of participating in a legal proceeding on the client's behalf or by having his name affixed to the pleadings, motions, records, briefs, or other papers submitted in the matter [citation omitted]” (Ebert v. New York City Health & Hosps. Corp., 210 AD2d 292, 292—93 [2d Dept. 1994], lv. denied, 85 NY2d 806 ; see also, Cataldo v. Budget Rent A Car Corp., 226 AD2d 574 [2d Dept. 1996], lv. dismissed, 88 NY2d 1017 , lv. denied, 89 NY2d 811  ).
Mr. Bellon's application, seeking to recover against Ms. Taub's divorce judgment proceeds, fails for the simple but inescapable fact that he did not represent her in those proceedings.
This court presided over these matrimonial proceedings from May of 2010, including the trial which commenced on October 4, 2010 and ended on November 1, 2010, through to the final judgment of divorce rendered on July 27, 2011, and continuing on through various post-judgment applications, the last one having been decided by this court on December 3, 2013. At no point in time, from May, 2010 through to the present, was the movant, David Bellon, Esq. ever counsel of record herein, nor did he ever represent her in this matrimonial action 2 before this court; additionally, with the exception of the instant motion, Mr. Bellon filed no pleadings, briefs, motions or other papers in this action.
Since Mr. Bellon did not appear as attorney of record in this matter, and also never filed a notice of lien pursuant to Judiciary Law § 475–a (and would have had no basis to do so), he is not entitled to a charging lien under the Judiciary Law (see Matter of Jaghab & Jaghab v. Marshall, 256 AD2d 342 [2nd Dept. 1998] ).
While Mr. Bellon observes that one 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 (see Klein v. Eubank, 87 NY2d 459, 462 , rearg. denied, 87 NY2d 1056  ), the attorney must have been counsel of record at some point. The Klein court explained that former counsel was not necessarily precluded from invoking the lien: “an attorney's participation in the proceeding at one point as counsel of record is a sufficient predicate for invoking the statute's protection [citation omitted]” (id.).
Despite Mr. Bellon's representation upon this application that he represented Ms. Taub in this matrimonial action, this court holds, as a matter of fact and law, that Mr. Bellon did not appear for Ms. Taub in this action, and thus he has no charging lien here. Accordingly, he cannot avail himself of this summary procedure to recover attorney's fees, which fee claims obviously relate to his litigation of the bankruptcy proceedings.
Where there is a valid charging lien the attorney may seek to enforce it “by making a petition to the court in the proceeding where [he] appeared, rather than having to bring a separate plenary action” (Haser v. Haser, 271 AD2d 253, 254 [1st Dept. 2000]; see also Miller v. Kassatly, 216 AD2d 260 [1st Dept. 1995] ).
That is not possible here however because the petitioning attorney, Mr. Bellon, did not appear for Ms. Taub in this matter and had no role in the trial or post-trial proceedings leading to the ultimate judgment of divorce and ancillary relief.
The attorney's lien is only on the specific judgment from the action in which the attorney appeared. “[T]he expedited procedure of Judiciary Law § 475 is designed to attach only the specific proceeds of the judgment or settlement in the action where the attorney appeared” (Haser v. Haser, 271 AD2d at 255).
“If there is no charging lien, the remedy does not lie and the attorney must bring a plenary action to determine and recover his fee” (Matter of Desmond v. Socha, 38 AD2d 22, 24 [3rd Dept. 1971], aff'd, 31 NY2d 687 ; see also, Rodriguez, 66 NY2d at 827).
In the matter sub judice the court finds that Mr. Bellon is not entitled to an attorney's lien under Judiciary Law § 475 and therefore, to pursue such claims as he may have for the recovery of attorney's fees, he must bring a plenary action, before an appropriate forum, not the matrimonial court. Further, in light of this court's conclusion that the movant does not possess an attorney's lien on any of the divorce judgment proceeds, Mr. Bellon's subsidiary claims and additional requests for relief will not be addressed and are denied.
In closing, this court must note that there is a perceived overlap between the divorce action and the bankruptcy proceedings on the part of Mr. Bellon. This is by virtue of the facts that the bankruptcy court was to incorporate the matrimonial judgment into its final bankruptcy decree and distribution, that both Chana Taub and Simon Taub were also opposing parties in both matters, and that these parties entered into a “global settlement” of the bankruptcy proceedings which also settled all of their disputes regarding the final divorce judgment and equitable distribution provisions. Nevertheless, Mr. Bellon cannot look to Ms. Taub's distributive award or her ownership of the former marital home to satisfy his claim for unpaid fees absent a new lawsuit seeking same.
Accordingly, the movant's application is hereby denied in its entirety.
This constitutes the decision and order of the court.
1. It bears noting that this document reflects the employment of the attorney for the E.D.NY Bankruptcy case litigation.
2. Mr. Bellon had incidentally appeared before this court, in the capacity of Ms. Taub's bankruptcy attorney, with regard to the status of the Eastern District bankruptcy proceedings.
Matthew J. D'Emic, J.
Response sent, thank you
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Docket No: 26534/2007
Decided: May 11, 2018
Court: Supreme Court, Kings County, New York.
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