Gurvitsch v. Gurvitsch (239 A.D.2d 465, 1997)

In an action for a divorce and ancillary relief, Shmuel Klein appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated July 30, 1996, as directed him to pay the plaintiffs former attorney, Tomas Greenberger, fees in the amount of $4,250.

Ordered that, on the Court’s own motion, the order to show cause by Tomas Greenberger to collect his fee, and the supporting and opposing affirmations, are converted into a petition and pleadings of a special proceeding pursuant to Judiciary Law § 475 to enforce Tomas Greenberger’s charging lien against the proceeds of the settlement of the matrimonial action (see, Flores v Barricella, 123 AD2d 600; Matter of Reich v Power, 30 AD2d 925); and it is further,

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The record indicates that Tomas Greenberger had a charging lien for legal services rendered because he appeared as the attorney of record for the plaintiff in the matrimonial action (see, Rodriguez v City of New York, 66 NY2d 825). The amount of Greenberger’s fee was previously determined, after a hearing, when it was also determined that Greenberger’s dismissal was without cause. The lien was not affected by the settlement of the action by the appellant, who is the plaintiffs incoming attorney, and it was enforceable through a special proceeding pursuant to Judiciary Law § 475 against the appellant, who was in possession of a portion of the settlement proceeds (see, People v Keeffe, 50 NY2d 149; Cohen v Cohen, 160 AD2d 571; Flores v Barricella, 123 AD2d 600, supra;,Kaplan v Reuse, 113 AD2d 184). Pizzuto, J. P., Santucci, Friedmann and Luciano, JJ., concur.