Carmichael v. Hillview Owners Corp.
Opinion
Carmichael v Hillview Owners Corp.
2024 NY Slip Op 30765(U)
March 11, 2024
Supreme Court, New York County Docket Number: Index No. 152936/2021 Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M J ustice
---------------------------------------- ---- - - -- - - - --X 152936/2021 INDEX NO.
NORA CARMICHAEL,
MOTION DATE 07/1 4/2023 Plaintiff,
MOTION SEQ. NO. 004 • V.
HILLVIEW OWNERS CORP., MIDBORO MANAGEMENT, LLC,JOHN BLAHNIK, TERRI THRASH. ELITE H. DECISION + ORDER ON RENOVATI ON, LLC, BUILDINWOOD LLC, MOTION
Defendant.
- - - - - - - - - - -- - - - -- --·-----------X
HILLVIEW OWNERS CORP . MIDBORO MANAGEMENT, Third-Party LLC, TERRI THRASH Index No. 595432/202 1
Plaintiff,
-against-
BUI LDINWOOD LLC
Defendant.
·-------------· -- - X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 81, 82, 83. 84, 85, 86, 87, 88, 89, 90, 91 , 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108 ATTORN EY -
were read on this motion to/for DISQUALIFY/RELI EVE/SUBSTITUTE/WITHDRAW
1
Upon the foreffoin°
t- e documents there beilu!
._. no op1Josition and o<>ood cause having ~ .., been
shown, Caner Demirayuk, Esq. 's ("Movant") motion to be relieved as counsel for Plaintiff Nora Carmichael ("Plaintiff') is granted. Movant's request for a charging lien on any future settlement is also granted. The cross-motions of Defendant/Third-Party Defendant Buildinwood, J.T.C ("13uildinwood") and Defendant John Blahn ik ("'i3lalmik'') seeking an Order enforcing an alleged
1
\\~1ile Defendant John Rlahnik filed an ;\ ffinnation titled " Atfomation in Support of Dcfondanl Blahnik's Cross Motion and In Opposition to Plaintiff's Order to Show Cause," the Blahn ik /\llinnation makes no argument in opposilion lo PlaintilT s molion.
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NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
stipulation of settlement and compelling Plaintiff to execute alleged agreements and releases provided hy Defendants' counsel, are stayed pursuant to CPI.R 32 1(c).
I. Background and Procedural Ilistorv Plainti ff commenced this action on March 24, 2001 hy 111ing a Summons and Complaint against Defendants Ilillvicw Owners Corp., M idboro Management, LLC, Blalmik, Te1Ti Thrash and Elite H. Renovation, LLC (N YSC EF Doc. I). Subsequently, those defendants filed a Third- Patty Summons and Comph1illl on May 11, 202 1 against Ruildinwood (NYSCF.F Doc. 20). On June 22, 202 1, Plaimiff filed an Amended Comp laint naming Buildinwood as a direct defendant (NYSCEF Doc. 29).
Plainti ffs counsel brought the instant motion lo he relieved as cmmscl on July 18, 2023, claiming a breakdown in the attorney-client relationship caused by "a di rfhence of opinion as to lhe handling of this mailer whi ch cannot be reconciled" (NYSCEF Doc. 82 at ii 4). On September 22, 2023 Buildinwood filed a cross-motion for an Order enforcing an alleged stipulation or settlement (the '·Stipulation o r Selllement") (NYSCEF Doc. 87). Su bsequently, 13lalmik filed a cross-motion for an Order '·enforcing the Stipulation of Settlement and compelling Plaintiff to ex.e cute the agreemems and releases provided hy defendants' counse ls" (NYSCEF Doc. 99).
II. Discussion
There being no opp<Jsition, and good cause having been shown, Movant's motion to be relieved as counsel for Plaintiff is granted . Movant's request for a charging lien cm any future sett lemenl is a lso granted.
1. Movant's Motion for a Charging Lien is ( iranted Pursuam to Judiciary I.aw 475, " a charging lien automatically comes into existence, without notice or fil ing, upon commencement or the action, and it measured by the reasonable
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NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
value of the attorney's services in the action, unless fixed by agreement" (Resnick v Resnick, 24 AD3d 238,239 [1st Dept 2005]). Funher, the First Department has held that "lwjherc an attorney' s representation terminates and there has been no misconduct, no d ischarge for just cause and no unj ustified abandonment by the attorney, the attorney's right to enforce the charging lien is preserved" (Ramirez v Wi//ow l<idP.e Couniry Club, Inc., 60 AD3d 406 [l s! Dept 2009] quoting Klein v Eubank, 87 NY2d 459, 464 [1996]).
Herc, there is no dispute that Movant was retained by Plaintiff to prosecute the present action, and there is no allegation in the record of any misconduct or abandonment on the part of Movant. As such, Movant has established its entitlement lo a charging lien under Judiciary Law §475.
Buildinwood and Blahnik's Cross-Motions are Stayed by Operation of CPLR 32 l(c)
The First Department has held that where an attorney's motion to withdraw as counsel is granted due to disagreements with their cl ient over strategy, as is the case here, "further proceedings against plaintiff [arc] stayed by operation of CPLR 32 l (c), unti l 30 days after notice to appoint another attorney lhasl been served" (Fan v Sabin, 125 AD3d 498, 499-500 [l st Dept 2015]). t\s such, Ruildinwood and Blahni k's cross-motions seeking an Order enforcing the Stipulation of Settlement and compelling Plaintiff to execute alleged agreements and releases provided by Defendants' counsel is stayed by operation of'CPJ.R 32 l(c).
Accordingly, it is hereby, ORDERED that Caner Dernirayak. Esg.'s motion to be relieved as counsel for Plaintiff Nora Carmichael is gramed; and it is further ORDF.RF.D that Caner Demirayak, Esq. is granted a charging lien against the proceeds of any settlement in this action; and it is further
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NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 03/11/2024
ORDERED that this charging lien is preserved until such time as the Court, upon settlement or j udgment, may hear and determine the reasonable va lue of Caner Demirayak, Esq.' services provided; and it is further ORDERED that a hearing to determine the reasonable value of such services shall be held following such settlement or judgment; and it is further ORD ERED that no settlement or judgment shall be paid or disbursed until the amount of the charging lien is determined at said hearing; and it is further ORDERED that Plaintiff Nora Carmichael must inform this Court, wi thin 60 days from ent1y of this Decision and Order, via correspondence uploaded to NYSCEF and e-mail to SFC- Part:B-Clcrk(@nvcourts. gov, that she has retained new counsel or has decided to proceed prose.
- result in dismissal o f Plaintiff Nora Carmichael's lawsuit for Failure to abide bv, this Order mav
failure to prosecULc; and it is further ORDERED that the proceedings and discovery in this matter. as well as the cross-motions of DefcndantiThird-Party Defendant 13uildinwood, I .J .C and Del'endant John Blahnik arc stayed, pursuant to CPLR 32 1(c), until 30 days after Plaintiff's notice to appoint another attorney is served, or Plainti ff notifies the Court that she has decided to proceed prose; and it is further ORDERED that within 10 days of entry, Caner Demirayak, Esq. shall serve a c-0py of this Decision and Order upon all parties to this action, including Plainti ff Nora Carmichael, via first - class mail al their last known business or residential address; and it is further
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