Summary
striking jury demand in suit for enforcement of attorneys' lien
Summary of this case from Louima v. City of New YorkOpinion
October 6, 1986
Appeal from the Supreme Court, Kings County (Shaw, J.).
Judgment affirmed, with costs.
The record indicates that Reich and Reich, P.C., had a charging lien for legal services rendered because it appeared as the attorney of record for Manuel and Maria Flores in their negligence action against Arcangelo Barricella (see, Rodriquez v City of New York, 66 N.Y.2d 825). The lien was not affected by the settlement of the action by the incoming attorney, the appellant Joseph Mandell. It was enforceable through a special proceeding pursuant to Judiciary Law § 475 against Mandell, who was in possession of a portion of the settlement proceeds (see, People v Keeffe, 50 N.Y.2d 149; Kaplan v Reuss, 113 A.D.2d 184, affd 68 N.Y.2d 693). It was within the court's discretion to treat the notice of motion, supporting and opposing affidavits as a notice of petition and pleadings in the proceeding (see, Matter of Reich v Power, 30 A.D.2d 925, affd 22 N.Y.2d 887). Nor did the court err when it struck Mandell's jury demand (Matter of King, 168 N.Y. 53).
Mandell failed to prove that the firm of Reich and Reich, P.C., was discharged for cause, a circumstance which would have eliminated its entitlement to compensation (see, Teichner v W J Holsteins, 64 N.Y.2d 977). The court was presented with sufficient information regarding the legal services performed by the incoming and outgoing attorneys to determine each party's contingent percentage of the recovery (see, Reubenbaum v B. H. Express, 6 A.D.2d 47, 49). Bracken, J.P., Brown, Neihoff and Eiber, JJ., concur.