ROTKER v. ROTKER

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Supreme Court, Westchester County, New York.

Nancy Cohen ROTKER, Plaintiff, v. Glenn ROTKER, Defendant.

Decided: April 23, 2003

Marshall S. Goldman, Esq., White Plains, Attorney for Plaintiff. Neil A. Fredman, Esq., Fredman & Kosan, LLP, White Plains, Former Attorneys for Plaintiff. James J. Nolletti, Esq., Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, Attorneys for Defendant.

At issue in this fee dispute between the plaintiff and her former attorneys is the compatibility, or incompatibility, of the attorneys' common law right to a retaining lien with the requirement now established by the Appellate Divisions that matrimonial fee disputes be determined by arbitration.   The issue arises in the context of the plaintiff's motion for an order directing her former attorneys to deliver their file with respect to this action to her new attorney.   In response, the former attorneys have asserted a common law retaining lien with respect to the file and have cross-moved for an immediate hearing to determine their fee and secure their lien.   The plaintiff claims, instead, an entitlement to arbitration of the fee dispute, a claim that is contested by her former attorneys, who argue that by invoking the authority of the court to compel delivery of the file without first seeking arbitration of the dispute, the plaintiff has waived her right to arbitration and thereby entitled the attorneys to have their fee determined by the court.

 Analysis of the competing claims of the plaintiff and her former attorneys must begin with the basic principle that the plaintiff, like every client, had the right to discharge her former attorneys at any time with or without cause (see, Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 457, 541 N.Y.S.2d 742, 539 N.E.2d 570 [1989];  Teichner v. W & J Holsteins, Inc., 64 N.Y.2d 977, 979, 489 N.Y.S.2d 36, 478 N.E.2d 177 [1985] ).   An attorney who has been discharged without cause, and who has satisfied the conditions precedent to earning a fee (see, Bishop v. Bishop, 295 A.D.2d 382, 743 N.Y.S.2d 724 [2d Dept. 2002] ), is entitled to recover the amount of his or her compensation (see, Cohen v. Cohen, 183 A.D.2d 802, 803, 584 N.Y.S.2d 116 [2d Dept. 1992] ) in three ways:  by the assertion of a retaining lien, by the assertion of a charging lien or by commencing a plenary action (see, Teichner v. W & J Holsteins, Inc., 64 N.Y.2d at 979, 489 N.Y.S.2d 36, 478 N.E.2d 177, supra;  Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 651 N.Y.S.2d 525 [1st Dept. 1997] ).

 A retaining lien, which attaches automatically upon the commencement of the representation, is a security interest in any documents or other items of the client that are in the possession of the attorney and is extinguished when the possession terminates other than by court order (see, Matter of Cooper, 291 N.Y. 255, 52 N.E.2d 421 [1943];  Matter of Heinsheimer, 214 N.Y. 361, 108 N.E. 636 [1915];  Kaplan v. Reuss, 113 A.D.2d 184, 186, 495 N.Y.S.2d 404 [2d Dept. 1985], affd. 68 N.Y.2d 693, 506 N.Y.S.2d 304, 497 N.E.2d 671 [1986];  Rosen v. Rosen, 97 A.D.2d 837, 468 N.Y.S.2d 723 [2d Dept. 1983] ).   A charging lien is a security interest in the favorable result of the litigation (see, Lebaudy v. Carnegie Trust Co., 222 N.Y. 525, 118 N.E. 1065 [1917];  Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 651 N.Y.S.2d 525, supra;  Kaplan v. Reuss, 113 A.D.2d at 186, 495 N.Y.S.2d 404, supra ).   It attaches automatically upon the interposition of the claim, whether in a complaint or a responsive pleading (see, Judiciary Law § 475;  see also, Banque Indosuez v. Sopwith Holdings Corp., 98 N.Y.2d 34, 745 N.Y.S.2d 754, 772 N.E.2d 1112 [2002];  LMWT Realty Corp. v. Davis Agency, 85 N.Y.2d 462, 467, 626 N.Y.S.2d 39, 649 N.E.2d 1183 [1995] ).   Where either lien is asserted, the attorney is entitled to a prompt hearing to fix the amount of the lien (see, Katsaros v. Katsaros, 152 A.D.2d 539, 543 N.Y.S.2d 478 [2d Dept. 1989];  Rosen v. Rosen, 97 A.D.2d 837, 468 N.Y.S.2d 723, supra;  see also, Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 651 N.Y.S.2d 525, supra ).

 The one exception to the attorney's entitlement to protect his or her fee by the assertion of a lien is the situation presented where the attorney is discharged for cause, i.e., as a result of attorney misconduct or the unjustifiable abandonment of the representation, in which case neither a retaining lien nor a charging lien may be asserted (see, Klein v. Eubank, 87 N.Y.2d 459, 464, 640 N.Y.S.2d 443, 663 N.E.2d 599 [1996];  Teichner v. W & J Holsteins, Inc., 64 N.Y.2d at 979, 489 N.Y.S.2d 36, 478 N.E.2d 177, supra;  see also, Campagnola v. Mulholland Minion & Roe, 76 N.Y.2d 38, 44, 556 N.Y.S.2d 239, 555 N.E.2d 611 [1990];  Matter of Montgomery, 272 N.Y. 323, 326, 6 N.E.2d 40 [1936];  Holmes v. Evans, 129 N.Y. 140, 29 N.E. 233 [1891];  Shalom Toy, Inc. v. Each And Every One of the Members of the New York Property Underwriting Assn., 239 A.D.2d 196, 198, 658 N.Y.S.2d 1 [1st Dept.1997] ).   Whether an attorney was discharged with or without cause must be determined by a timely hearing (see, Teichner v. W & J Holsteins, 64 N.Y.2d at 979, 489 N.Y.S.2d 36, 478 N.E.2d 177, supra;  Matter of Clark v. Vitiello, 261 A.D.2d 824, 689 N.Y.S.2d 568 [4th Dept.1999];  Marschke v. Cross, 82 A.D.2d 944, 440 N.Y.S.2d 740 [3d Dept.1981] ).   If the discharge was for cause, the attorney may not recover his or her compensation (see, Teichner v. W & J Holsteins, 64 N.Y.2d at 979, 489 N.Y.S.2d 36, 478 N.E.2d 177, supra ).   If it is determined that the discharge was without cause, and occurred before the completion of the attorney's services, the amount of compensation must be determined on a quantum meruit basis (see, Teichner v. W & J Holsteins, 64 N.Y.2d at 979, 489 N.Y.S.2d 36, 478 N.E.2d 177, supra ).

 In addition to the right to a speedy determination of his or her entitlement to a fee, the outgoing attorney who asserts a retaining lien is entitled to retain the client's file, and, in the absence of exigent circumstances, may not be compelled to deliver the file to the client or substitute counsel until an expedited hearing has been held to determine the amount of the fee owed (see, Eighteen Assocs., LLC v. Nanjim Leasing Corp., 297 A.D.2d 358, 746 N.Y.S.2d 599 [2d Dept.2002];  Markard v. Markard, 206 A.D.2d 512, 615 N.Y.S.2d 280 [2d Dept.1994];  Fields v. Casse, 182 A.D.2d 738, 582 N.Y.S.2d 738 [2d Dept.1992];  Andreiev v. Keller, 168 A.D.2d 528, 563 N.Y.S.2d 88 [2d Dept.1990] ) and the attorney is paid the reasonable value of his or her services or adequate security is provided therefor (see, Hom v. Hom, 210 A.D.2d 296, 298, 622 N.Y.S.2d 282 [2d Dept.1994];  Cohen v. Cohen, 183 A.D.2d 802, 584 N.Y.S.2d 116, supra;  Science Dev. Corp. v. Schonberger, 159 A.D.2d 343, 344, 552 N.Y.S.2d 620 [1st Dept.1990];  Corby v. Citibank NA, 143 A.D.2d 587, 588, 532 N.Y.S.2d 870 [1st Dept.1988];  Pileggi v. Pileggi, 127 A.D.2d 751, 512 N.Y.S.2d 142 [2d Dept.1987];  Steves v. Serlin, 125 A.D.2d 780, 781, 509 N.Y.S.2d 666 [3d Dept.1986];  Artim v. Artim, 109 A.D.2d 811, 812, 486 N.Y.S.2d 328 [2d Dept.1985];  Rosen v. Rosen, 97 A.D.2d at 837, 468 N.Y.S.2d 723, supra;  Manfred & Sons, Inc. v. Mortillaro, 69 A.D.2d 1019, 416 N.Y.S.2d 156 [4th Dept.1979] ).   The burden is on the client who seeks the immediate release of the file to establish by affidavit the existence of exigent circumstances (see, Pileggi v. Pileggi, 127 A.D.2d at 751, 512 N.Y.S.2d 142, supra ).   Where outgoing counsel sufficiently challenges the claim of exigent circumstances, a hearing must be held regarding the claim (see, Cohen v. Cohen, 183 A.D.2d at 803-04, 584 N.Y.S.2d 116, supra;  Pileggi v. Pileggi, 127 A.D.2d at 751, 512 N.Y.S.2d 142, supra ).   Ultimately, whether the fee “shall be presently payable or secured by a lien on the cause of action rests in the sound discretion of the trial court” (Hom v. Hom, 210 A.D.2d at 297, 622 N.Y.S.2d 282, supra ).

 Fixing the amount of the lien is now complicated by the rules of the Appellate Divisions that establish a clear public policy in favor of the arbitration of attorney-client fee disputes (see, 22 NYCRR §§ 1230.1, 1400.7), in accordance with procedures established by the rules of the Chief Administrator of the Courts (22 NYCRR part 137).   Pursuant to those rules and the Lawyers' Code of Professional Responsibility, fee disputes are required to be resolved by arbitration where the client so elects (22 NYCRR §§ 137.2, 1200.11[e] ).   Arbitration may be initiated by the attorney, where the client has consented in advance (22 NYCRR § 137.6[a][2] ), or by the client, either upon his or her own initiative (22 NYCRR § 137.6[c] ) or by responding to the notice provided by the attorney.   That notice, advising the client of the right to arbitration of the fee dispute, must be given by the attorney, in writing, “where the attorney and client cannot agree as to the attorney's fee” (22 NYCRR § 137.6[a][1] ).   Its service commences the 30-day period within which the client may elect to resolve the dispute by arbitration (22 NYCRR § 137.6[b] ).  If the client does not file the request for arbitration within 30 days of the mailing of the notice, the client has waived the right to request arbitration and the attorney may commence an action to recover the fee (Matter of Gretz v. Goldman, Sup.Ct., Westchester County, May 21, 2002, Nicolai, J., Index No. 08302/00;  22 NYCRR § 137.6[b] ).  If the notice is required but not served, the attorney cannot recover a fee (see, Julien v. Machson, 245 A.D.2d 122, 666 N.Y.S.2d 147 [1st Dept.1997];  LH v. VW, 171 Misc.2d 120, 653 N.Y.S.2d 477 [Civ.Ct., Bronx County 1996] ).

Here, the plaintiff's former attorneys provided no notice of the right to arbitrate.   They claim, however, that they were not required to provide the notice because the plaintiff had never disputed their fee prior to moving to compel the delivery of the file.   Although the plaintiff does not deny that she received regular bills from her former attorneys, there is no evidence, either in the form of correspondence between the plaintiff and her former attorneys or otherwise, that the plaintiff had previously expressed to them her disagreement with the fees charged.   The plaintiff's new attorney did not dispute the fee or request arbitration when he served the outgoing attorneys with a consent to change attorneys and requested the file, in November 2002.   It is not controverted that the former attorneys responded by immediately asserting their retaining lien and refusing to deliver the file until their fee had been fixed and the amount due paid or otherwise secured.   The plaintiff's incoming attorney renewed his request for the file at a conference before the court on January 6, 2003, and in the instant motion, made by notice of motion dated January 16, 2003.   Thus, while the plaintiff now claims to have been overcharged, there is no evidence that she ever disputed her former attorneys' fees prior to moving to compel the delivery of the file.   Her only direct allegation in this regard is that “they are well aware of the fact that I was upset over their fee”.   Such a conclusory allegation is not sufficient to sustain her claim that she disputed her former attorneys' fees.

In the absence of a fee dispute prior to the motion to compel delivery of the file, two questions are presented.   First, has the entitlement of the plaintiff's former attorneys to recover their fee been defeated by their failure to provide the notice to arbitrate?   Second, if it has not, has the plaintiff waived her right to arbitration by asking the court to direct the delivery of former counsel's file?   For the reasons that follow, both questions must be answered in the negative.

 The rules of the Chief Administrator of the Courts clearly establish that the notice of the availability of arbitration must be provided by the attorney, in writing, “where the attorney and client cannot agree as to the attorney's fee” (22 NYCRR § 137.6[a][1] ).   Nevertheless, there is a clear split between the appellate departments with respect to the mandatory nature of the notice.   The Appellate Division, First Department, has held, in Paikin v. Tsirelman, 266 A.D.2d 136, 136-37, 699 N.Y.S.2d 32 [1st Dept. 1999] ), that outgoing counsel is obligated to send the 30-day notice even in the absence of any fee disagreement with the client.   The failure to do so mandates the dismissal of any action for unpaid counsel fees.   The Appellate Division, Second Department, however, has explicitly declined to follow Paikin, holding instead that if the client has not disputed the reasonableness of the fees charged by outgoing counsel, the attorney is not required to send the notice (see, Scordio v. Scordio, 270 A.D.2d 328, 705 N.Y.S.2d 58 [2d Dept. 2000] ).   This court must, of course, adhere to the authority of the Appellate Division, Second Department.   Accordingly, since there was no fee dispute with the client prior to the plaintiff's motion to direct the delivery of the file, there was no requirement that the plaintiff's former attorneys send the plaintiff the 30-day notice and their failure to do so does not impair their lien or defeat their entitlement to a fee.

The second question, left undecided by Scordio, but presented here, is whether the client, whose former attorneys have asserted a retaining lien but were not required to send a notice of the availability of arbitration because there was no fee dispute known to the attorney, has forfeited her right to arbitration by moving to compel her former attorneys to deliver the file without first disputing the fee or otherwise demanding that the fee dispute be arbitrated.   Although it is improper to direct arbitration of a fee dispute where the client has not requested it (see, Markard v. Markard, 263 A.D.2d 470, 471-72, 692 N.Y.S.2d 733 [2d Dept.1999] ), the client here has, in fact, now made such a request.   While it can be argued, as her former attorneys do, that by moving to compel delivery of the file before requesting arbitration she has elected her remedy-a remedy that necessarily entails a speedy hearing and determination of the fee dispute by the court, not an arbitrator (see, Eighteen Assocs, LLC v. Nanjim Leasing Corp, supra;  Reich v. Reich, supra;  Fields v. Casse, supra;  Andreiev v. Keller, supra;  Manes v. Manes, supra )-it is nonetheless true that the former attorneys are bound by both the rules of the Appellate Divisions and the Lawyers' Code of Professional Responsibility to submit a fee dispute to arbitration where the client so requests (see, 22 NYCRR §§ 1230.1, 1400.7).

 Waivers, of course, are not favored in the law, and should not be found except where the conduct upon which they are based makes it unjust to do otherwise (see generally, Christian v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849 [1977] ).   The rules of the Chief Administrator of the Courts provide for a waiver by the client of the right to arbitrate where the client fails to respond in a timely fashion to the attorney's notice of the availability of arbitration (see, 22 NYCRR § 137.6[b] );  they do not address the situation presented where no such notice is required.   Moreover, although the rules of the Appellate Divisions provide for a right to arbitration only in accordance with the procedures established by the Chief Administrator of the Courts, the arbitration requirements of the Lawyers Code of Professional Responsibility are not so limited, arguably precluding any waiver by the client of the entitlement to arbitration of a fee dispute.   Waivers have, of course, been recognized (see, 22 NYCRR § 137.6[b];  Flanagan v. Flanagan, 267 A.D.2d 80, 699 N.Y.S.2d 406 [1st Dept. 1999];  Koeth v. Koeth, 2002 N.Y. Slip Op. 40046, 2002 WL 523109 [Sup.Ct., Nassau County, 2002] ), so it is too late to argue that no waiver is permissible.   Moreover, in what appears to have been a conscious decision (see, Moraitis v. Moraitis, 181 Misc.2d 510, 694 N.Y.S.2d 588 [Sup.Ct., Nassau County, 1999] ), the Rules of the Chief Administrator do not abrogate the attorney's common law retaining lien, which would be the unavoidable result of any rule that allowed the client an unrestricted right to select arbitration even after invoking another procedure by which the fee dispute could be resolved.   The question, then, is whether there is some way in which the client's request for arbitration, obviously now favored in the law, although not absolutely, can be consistent with the attorney's assertion of a common law retaining lien, that remains the attorney's right despite the now established policy favor the arbitration of fee disputes.

Several courts have struggled with the relationship between the client's entitlement to arbitration and the process by which attorneys' liens are fixed (see, Moraitis v. Moraitis, 181 Misc.2d 510, 694 N.Y.S.2d 588, supra;  KEC v. CAC, 173 Misc.2d 592, 601, 661 N.Y.S.2d 715 [Sup.Ct., Kings County, 1997] ).   None, however, has addressed the precise issue presented here.   Unlike the situations presented in Koeth and KEC, at issue here is a retaining lien, which carries with it the entitlement to a speedy hearing and the promise of swift payment thereafter;  unlike the situation presented in Moraitis, the plaintiff's former attorneys have promptly asserted their claim here.

Because of the frequent changes of counsel in matrimonial actions (see, Koeth v. Koeth, 2002 N.Y. Slip Op. 40046, 2002 WL 523109, supra ), it is not uncommon for an attorney to assert a retaining lien and the client to assert a right to arbitration of the underlying fee dispute.   Three interests come into play when that happens.   The lawyer is entitled to be paid for the services he or she has rendered;  the client is entitled to litigate the reasonableness of the fee;  and the other party to the action is entitled a prompt resolution of the issue so that the matrimonial action is not unduly delayed.   Accommodating these three interests requires that the court address the dispute immediately pursuant to a procedure by which the rights of the client to arbitration and of the attorney to a speedy determination of, and payment of or security for, his or her fee are protected without bringing the action to a halt in order to do so.

 The critical factor in ensuring that the action proceeds in a timely manner is requiring the prompt delivery of the file to incoming counsel.   This cannot be done, however, without first determining whether the attorney has been discharged for cause (see, Teichner v. W & J Holsteins, Inc., 64 N.Y.2d at 979, 489 N.Y.S.2d 36, 478 N.E.2d 177, supra;  Cohen v. Cohen, 183 A.D.2d at 803, 584 N.Y.S.2d 116, supra;  Andreiev v. Keller, 168 A.D.2d at 529, 563 N.Y.S.2d 88, supra ).   Because the mandatory arbitration rules limit the scope of the arbitration to the reasonableness of the fee charged (see, 22 NYCRR §§ 137.0, 137.7[d], 1200.11[e] ) and do not provide for the arbitration of the issue of whether the counsel's discharge was for cause, which is exclusively a question for judicial review and determination (see, Koeth v. Koeth, 2002 N.Y. Slip Op. 40046, 2002 WL 523109, supra;  Scheinkman, N.Y. Law of Domestic Relations, § 19:13, 2002 supplement), the court must initially determine whether counsel's discharge was for cause.   Cause hearings have been required on the basis of allegations that counsel had commenced unnecessary litigation (see, Shalom Toy, Inc. v. Each and Every One of the Members of the New York Property Underwriting Assn., 239 A.D.2d at 197-98, 658 N.Y.S.2d 1, supra ), failed to complete discovery (see, Cohen v. Cohen, supra ), and engaged in unnecessary motion practice (see, Katsaros v. Katsaros, 152 A.D.2d at 540, 543 N.Y.S.2d 478, supra ).   Here, the plaintiff's allegations, although denied by her former counsel, are sufficient to raise a triable issue of fact in this regard.   A hearing is, therefore, similarly required.

If at the conclusion of that hearing it is found that there was cause for the discharge, the matter is resolved, because both the entitlement of the plaintiff's former attorneys to recover their fee and their retaining lien are defeated and the file must be delivered immediately to incoming counsel (see, see, Klein v. Eubank, 87 N.Y.2d at 464, 640 N.Y.S.2d 443, 663 N.E.2d 599, supra;  Teichner v. W & J Holsteins, Inc., 64 N.Y.2d at 979, 489 N.Y.S.2d 36, 478 N.E.2d 177, supra;  Shalom Toy, Inc. v. Each And Every One of the Members of the New York Property Underwriting Assn., 239 A.D.2d at 198, 658 N.Y.S.2d 1, supra ).   If, on the other hand, the issue of cause for the discharge is resolved in favor of the plaintiff's former attorneys, the court must address the issue of exigent circumstances, such as indigency (see, Cohen v. Cohen, 183 A.D.2d at 803-04, 584 N.Y.S.2d 116, supra;  Katsaros v. Katsaros, 152 A.D.2d at 540, 543 N.Y.S.2d 478, supra;  Pileggi v. Pileggi, 127 A.D.2d 751, 512 N.Y.S.2d 142, supra;  Moraitis v. Moraitis, 181 Misc.2d at 512, 694 N.Y.S.2d 588, supra ), which, if found, would justify directing the immediate release of the file (see, Eighteen Assocs., LLC v. Nanjim Leasing Corp., 297 A.D.2d 358, 746 N.Y.S.2d 599, supra;  Reich v. Reich, 272 A.D.2d 313, 707 N.Y.S.2d 896, supra;  Manes v. Manes, 248 A.D.2d 515, 669 N.Y.S.2d 899, supra;  Markard v. Markard, 206 A.D.2d 512, 615 N.Y.S.2d 280, supra ).   The plaintiff makes no claims of exigent circumstances here other than the normal exigencies inherent in the need to conclude a matrimonial action.   While these issues are not without importance, particularly to the other party to this action, it would render the concept of exigent circumstances meaningless to say that the normal incidents of litigation, without more, create such a situation.   Since the plaintiff has not alleged anything further, there is no basis upon which the court can find exigent circumstances here, even if that issue is reached.   To the extent that the plaintiff seeks a release of the file without otherwise securing the fee of her former attorneys, therefore, her motion must be denied.

 In the absence of exigent circumstances, the court must, before requiring the release of the file, either determine the amount of the fee to which the plaintiff's former attorney are entitled and direct its payment or protect the fee claim by identifying and sequestering property sufficient to satisfy it (see, Hom v. Hom, 210 A.D.2d at 298, 622 N.Y.S.2d 282, supra;  Cohen v. Cohen, 183 A.D.2d 802, 584 N.Y.S.2d 116, supra;  Pileggi v. Pileggi, 127 A.D.2d 751, 512 N.Y.S.2d 142, supra ).   Although several appellate decisions can be read as requiring that the court determine the fee (see, Eighteen Assocs., LLC v. Nanjim Leasing Corp., 297 A.D.2d at 359, 746 N.Y.S.2d 599, supra;  Markard v. Markard, 206 A.D.2d 512, 615 N.Y.S.2d 280, supra;  Fields v. Casse, 182 A.D.2d 738, 582 N.Y.S.2d 738, supra;  Andreiev v. Keller, 168 A.D.2d 528, 563 N.Y.S.2d 88, supra ), these authorities either predate the rules requiring arbitration of such disputes or are wholly silent with respect to whether the client had requested arbitration.   There is nothing inherent in the security interest established by a retaining lien, however, that entitles the attorney to choose the forum in which the fee dispute is ultimately resolved.   In fact, by requiring that lawyers submit fee disputes to arbitration, the Lawyers Code of Professional Responsibility has explicitly deprived the attorney of the choice of the forum for the ultimate fee determination.   The purpose of the retaining lien is not to determine the forum, but to secure the fee claim.   It is not necessary to that purpose that the fee determination be made by the court.   Once adequate security for the fee claim, other than the file, is in place, the purpose of the lien is satisfied and the fee can be determined otherwise.   Leaving the fee determination to be made by arbitration where possible furthers the public policy in favor of arbitration, without detriment to the interest of the other party to the litigation in avoiding the delays inherent in the retention of the file by outgoing counsel.   Thus, where, as here, the client has requested that the fee dispute be arbitrated, and assets other than the file are available to secure the attorney's fee claim, there is no reason why the client's request cannot be accommodated by referring the matter to arbitration for ultimate determination of the fee.1  A hearing is required, however, to determine whether such other security is available.   If it is not, the plaintiff will have to proceed in the litigation without the benefit of her former attorneys' file.

Accordingly, the plaintiff's motion for an order directing her former attorneys to deliver their file with respect to this matter is granted to the extent that a hearing will be held to determine whether the plaintiff's discharge of her former attorneys was for cause.   Determination of the cross-motion by her former attorneys' for an order determining their fee is held in abeyance pending the determination of the issue of cause.   In the event that the discharge of the plaintiff's former attorneys is determined to be for cause, the cross-motion will be denied.   In the event that the discharge is found to be without cause, a hearing will be held immediately to address the issue of the availability of assets of the plaintiff sufficient to secure her former attorneys' fee claim.   If such a hearing is held, and it is found that such assets are available, those assets will be sequestered to secure payment of the fee.   If, after such a hearing, no such assets are available, the plaintiff's motion to compel delivery of the file will be denied.   In either case, the matter will be referred to arbitration for determination of the fee to which the plaintiff's former attorneys are ultimately entitled.

The foregoing constitutes the decision and order of this Court.2

FOOTNOTES

1.   In Matter of Gretz v. Goldman (Sup. Ct., Westchester County, July 11, 2002, Spolzino, J., Index No.08302/00), this court held that by sending a notice of the right to arbitrate, counsel had triggered the client's right to elect arbitration and could not thereafter refuse to submit the fee dispute to arbitration, despite the fact that the request was submitted after the 30-day statutory period had expired.   Here, no such notice was sent to the client.

2.   In reaching this decision, the court has considered the following documents:  (1) the plaintiff's notice of motion dated January 16, 2003 (two pages);  (2) the affidavit of Nancy Cohen Rotker sworn to the 15th day of January, 2003 (four pages), together with exhibits A through G;  (3) the affirmation of Marshall S. Goldman, Esq., dated January 16, 2003 (two pages);  (4) the affirmation of James J. Nolletti, Esq., dated January 22, 2003 (one page);  (5) the notice of cross-motion dated January 23, 2003 (one page);  (6) the affirmation of Neil A. Fredman, Esq., dated January 21, 2003 (four pages), together with exhibits A through B;  (7) the reply affidavit of Nancy Cohen Rotker sworn to the 28th day of January, 2003 (three pages);  and (8) the reply affirmation of Neil A. Fredman.   Esq., dated January 28, 2003 (three pages).

SPOLZINO, J.

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