Aruck v. Aruck

170 A.D.2d 947, 566 N.Y.S.2d 890, 1991 N.Y. App. Div. LEXIS 1656

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: It was error for Supreme Court to fix the amount of counsel’s retaining lien without a hearing (see, Ventola v Ventola, 112 AD2d 291, 292-293; Petrillo v Petrillo, 87 AD2d 607; Gamble v Gamble, 78 AD2d 673; Yaron v Yaron, 58 AD2d 752). Plaintiff’s contention that his counsel is not entitled to a retaining lien because he was discharged for cause is raised for the first time on appeal and will not be considered. We, therefore, remit this matter to Supreme Court for a hearing to fix the amount of the outgoing attorney’s lien for his services and disbursements and conditioning the turnover of plaintiff’s file on payment of the sum found to be due or the posting of security therefor (see, Yaron v Yaron, supra). (Appeal from Order of Supreme Court, Ontario County, Purple, J.—Attorney’s Lien.) Present—Dillon, P. J., Denman, Green, Lawton and Davis, JJ.