Cohen v. Cohen

Appellate Division of the Supreme Court of New York

Cohen v. Cohen

160 A.D.2d 571, 554 N.Y.S.2d 525, 1990 N.Y. App. Div. LEXIS 4633

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 1990

StatusPublished

Cited by5 cases

This text of 160 A.D.2d 571 (Cohen v. Cohen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cohen v. Cohen, 160 A.D.2d 571, 554 N.Y.S.2d 525, 1990 N.Y. App. Div. LEXIS 4633 (N.Y. Ct. App. 1990).

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Opinion

—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered April 6, 1989, which, upon reargument, granted appellant’s motion for leave to withdraw as plaintiff-respondent’s counsel, denied its motion for a retaining lien and limited any charging lien to which it may be entitled to counsel fees awarded to plaintiff-respondent or her subsequent counsel in the underlying matrimonial action, unanimously modified, on the law and the facts, to extend the charging lien to cover any proceeds plaintiff-respondent may recover in the underlying matrimonial action, exclusive of maintenance, and otherwise affirmed, without costs.

After representing plaintiff-respondent on a motion for maintenance and support arrears in a matrimonial action, appellant law firm moved to withdraw as counsel and sought a charging lien in addition to a retaining lien. The Supreme Court granted appellant’s motion to withdraw as counsel and referred the issues of whether "just cause” existed for the [572]*572withdrawal as well as the amount of the charging lien to a Special Referee to hear and report. The motion for a retaining lien was denied. The court limited the amount of any charging lien to which appellant would be entitled to counsel fees awarded plaintiff-respondent or her subsequent counsel.

The Supreme Court erred in limiting the charging lien to an award of attorney’s fees. Section 475 of the Judiciary Law provides that an "attorney who appears for a party has a lien upon his client’s cause of action * * * which attaches to a verdict, report, determination, decision, judgment or final order in his client’s favor”. Although a charging lien does not attach to an award of alimony and maintenance (Turner v Woolworth, 221 NY 425), section 475 does not preclude the enforcement of such lien upon any other award made in the action (Rosen v Rosen, 97 AD2d 837; Williams v Hertz Corp., 75 AD2d 766). Concur—Kupferman, J. P., Ross, Rosenberger and Wallach, JJ.

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—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered April 6, 1989, which, upon reargument, granted appellant’s motion for leave to withdraw as plaintiff-respondent’s counsel, denied its motion for a retaining lien and limited any charging lien to which it may be entitled to counsel fees awarded to plaintiff-respondent or her subsequent counsel in the underlying matrimonial action, unanimously modified, on the law and the facts, to extend the charging lien to cover any proceeds plaintiff-respondent may recover in the underlying matrimonial action, exclusive of maintenance, and otherwise affirmed, without costs.

After representing plaintiff-respondent on a motion for maintenance and support arrears in a matrimonial action, appellant law firm moved to withdraw as counsel and sought a charging lien in addition to a retaining lien. The Supreme Court granted appellant’s motion to withdraw as counsel and referred the issues of whether "just cause” existed for the [572]*572withdrawal as well as the amount of the charging lien to a Special Referee to hear and report. The motion for a retaining lien was denied. The court limited the amount of any charging lien to which appellant would be entitled to counsel fees awarded plaintiff-respondent or her subsequent counsel.

The Supreme Court erred in limiting the charging lien to an award of attorney’s fees. Section 475 of the Judiciary Law provides that an "attorney who appears for a party has a lien upon his client’s cause of action * * * which attaches to a verdict, report, determination, decision, judgment or final order in his client’s favor”. Although a charging lien does not attach to an award of alimony and maintenance (Turner v Woolworth, 221 NY 425), section 475 does not preclude the enforcement of such lien upon any other award made in the action (Rosen v Rosen, 97 AD2d 837; Williams v Hertz Corp., 75 AD2d 766). Concur—Kupferman, J. P., Ross, Rosenberger and Wallach, JJ.

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Bluebook (online)

160 A.D.2d 571, 554 N.Y.S.2d 525, 1990 N.Y. App. Div. LEXIS 4633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-cohen-nyappdiv-1990.

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