Brenhouse v. Barbara

In an action, inter alia, to enforce a charging lien, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Cowhey, J.), entered November 2, 1995, as granted the cross motion of the respondents Dominic Barbara and Barbara & Barbara for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the judgment is reversed insofar as . appealed from, on the law, with costs, the cross motion of Dominic Barbara and Barbara & Barbara for summary judgment is denied, and, upon séarching the record, partial summary judgment is granted to the appellant on his first cause of action against Dominic Barbara and Barbara & Barbara, the remaining claims are severed, and the matter is remitted for the entry of judgment on the first cause of action.

In Artache v Goldin (173 AD2d 667), this Court awarded the plaintiff Arnold Brenhouse, the former attorney for Carmen Artache, a charging lien in the amount of $37,500. That case was thereafter settled in favor of Artache, and the proceeds of the suit were paid over to her at the direction of the respondent Dominic Barbara of the respondent law firm Barbara & *359Barbara, in knowing disregard of lien awarded by this Court. The plaintiff commenced the instant action, inter alia, to recover the amount of the lien. We hold that the respondents’ payment to Artache of the entire proceeds of the suit in disregard of the plaintiff’s lien was improper (see, Leon v Martinez, 84 NY2d 83). The record does not support the Supreme Court’s conclusion that the plaintiff waived his right to enforce the lien. To the contrary, the record shows that the plaintiff repeatedly and consistently attempted to enforce the lien and that it was the conduct of the respondents in inappropriately refusing to honor the lien that caused the delay. Furthermore, the record does not support the court’s statement that the plaintiff had admitted receiving $20,000 pursuant to that charging lien. While the plaintiff admitted that he had received approximately that amount, it was paid to him prior to this Court’s award of $37,500, and the record in Artache makes it clear that this Court’s award was in addition to the money, $19,440, that Artache had previously paid to the plaintiff. Accordingly, upon searching the record, the plaintiff is awarded partial summary judgment against the respondents Dominic Barbara and Barbara & Barbara on his first cause of action to enforce the charging lien. Rosenblatt, J. P., Pizzuto, Friedmann and Goldstein, JJ., concur.