New York State Court of Claims

New York State Court of Claims

DEVINE v. THE STATE OF NEW YORK, #2009-045-022, Claim No. 113819, Motion No. M-76679


Attorney’s motion to withdraw, attempt to place a retaining lien and charging lien on file. Also attempts to assert claim of quantum meruit against State for legal fees

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Hofmann & AssociatesBy: No appearance
Defendant’s attorney:
Betancourt, Van Hemmen, Greco & Kenyon, LLC
By: Ronald Betancourt, Esq.

Hon. Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Order to Show Cause to be Relieved as Counsel, Affirmation in Support with annexed Exhibit A, Memorandum of Law in Support, Affirmation Taking No Position on the Motion to Withdraw and Requesting an Order Requiring Withdrawing Counsel to Provide File to Defendant with annexed Exhibits A-E, Reply Affirmation with annexed Exhibits A-H and Reply Memorandum of Law in Support.

Pursuant to an Order to Show Cause, a hearing was held before this Court on July 16, 2009 concerning the request by movant, Bentancourt, Van Hemmen, Greco & Kenyon, LLC, outside counsel for defendant, the State of New York, to be relieved as counsel in this matter. At the hearing an attorney from the Office of the Attorney General appeared on behalf of defendant. Defendant took no position on movant’s application to withdraw as counsel however it sought an order requiring production of withdrawing counsel’s entire file. Movant opposed the production of its file and requested a charging lien, a retaining lien and an expedited hearing to fix the amount due to the firm. Claimant did not appear at the hearing.

Claimant filed a claim in this matter on June 11, 2007. A verified answer which did not contain any counterclaims was filed on September 10, 2007. At the July 16, 2009 hearing, movant presented the reasons for making this motion. An attorney may withdraw as counsel upon a showing of good and sufficient cause and reasonable notice (Walker v Mount Vernon Hosp., 5 AD3d 590 [2d Dept 2004]). Movant established that the underlying claim concerns a labor law case in which defendant tendered the defense of the lawsuit to Modern Continental Construction Co. (Modern) pursuant to its contract with Modern. Modern then hired movant to defend the claim in this matter. Movant concedes that it reported to Modern, took instructions from Modern and was paid defense fees and disbursements by Modern. Subsequently, Modern filed for bankruptcy in June 2008. In August 2008, the St. Paul Travelers Companies, Inc. (Travelers) undertook responsibility for the payment of defense fees and disbursements pursuant to its performance bond. In February 2009, Travelers informed movant that the performance bond had been exhausted and that it would no longer fund the defense costs in this case. Movant contends that it was left in a position with no one instructing them on the defense of the action and no party agreeing to pay their fees and disbursements. Movant contends, inter alia, that defendant received the benefit of their services and therefore should be responsible for the payment of the fees and disbursements. Defendant argues that it did not hire movant, direct movant or have any employment relationship with movant that would obligate it to pay movant’s fees and disbursements.

Based upon the information provided to the Court, the Court finds that movant has satisfied its burden to be relieved as counsel.

Pursuant to Judiciary Law § 475, an attorney for a defendant who files an answer with a counterclaim is entitled to a statutory charging lien. However, an attorney who files an answer without asserting a counterclaim is not entitled to a charging lien because there is nothing to which such a lien can attach (Natole v Natole, 295 AD2d 706 [3d Dept 2002]; Goldman v Rafel Estates, Inc., 269 App Div 647 [1st Dept 1945]). Since the verified answer does not contain a counterclaim, movant is not entitled to a charging lien in this matter.

Defendant cannot be held responsible for the payment of legal fees to movant in this matter since movant was retained by an insurance carrier, movant and defendant did not have an employment relationship and the parties never contemplated that defendant would be responsible for those fees (Cooper v Cranin, 104 AD2d 550 [2d Dept 1984]). Consequently, movant has no basis to assert and enforce a retaining lien and must look to the insurer for payment of its fees (E.W. Howell Co v Facilities Dev. Corp., 139 Misc 2d 796 [1988]; Brenner v Miller, 121 Misc 2d 1 [1983]). Similarly, movant cannot recover on the basis of quantum meruit as movant had no reasonable expectation of compensation from defendant for the legal services rendered (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487 [1st Dept 2009]).

Accordingly, the Court finds that movant has made a sufficient showing in order to be relieved as counsel in this matter. The Court also finds that movant is not entitled to a charging lien, a retaining lien or recovery on the basis of quantum meruit in this matter.

Therefore, for the foregoing reasons, movants motion to be relieved as counsel is granted. It is also ordered that movant shall deliver its file by personal service to defendant at either the Manhattan or Hauppauge Office of the New York State Attorney General within thirty (30) days of movant’s receipt of this order. Movant is also directed to file proof of service of delivery of its file to defendant with the Clerk of the Court of Claims within seven (7) days of the delivery of its file to defendant.

August 6, 2009
Hauppauge, New York

Judge of the Court of Claims