        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

86
CA 14-00022
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF HOGANWILLIG, PLLC,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

KAREN HENDEL, FORMERLY KNOWN AS KAREN REILLY,
NEW YORK STATE NURSES ASSOCIATION, COUNTY OF
ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION,
RESPONDENTS-RESPONDENTS.
(APPEAL NO. 1.)


HOGAN WILLIG, PLLC, AMHERST (STEVEN M. COHEN OF COUNSEL), FOR
PETITIONER-APPELLANT.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (KATHERINE LIEBNER
OF COUNSEL), FOR RESPONDENT-RESPONDENT KAREN HENDEL, FORMERLY KNOWN AS
KAREN REILLY.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered October 22, 2013. The order, inter alia,
dismissed the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner law firm commenced this proceeding
seeking to enforce a charging lien and a contingency fee agreement
with respect to proceeds of an arbitration award obtained by Karen
Hendel (respondent), for whom one of petitioner’s attorneys, Steven M.
Cohen, Esq., performed legal services. In appeal No. 1, petitioner
appeals from an order that, inter alia, dismissed the petition and
scheduled a hearing to determine the fair market value of the legal
services rendered by Cohen. The parties thereafter agreed that
Supreme Court would decide petitioner’s quantum meruit application
based solely on the papers submitted by the parties, which included,
inter alia, petitioner’s billing records, an affirmation from Cohen,
and an affidavit from respondent’s counsel. In appeal No. 2,
petitioner appeals from an order and judgment in which the court,
based on its review of the papers, awarded petitioner $19,294.95 in
attorney’s fees. In appeal No. 3, petitioner appeals from an amended
order and judgment issued by the court to clarify that the amount
previously awarded to petitioner included $544.95 in disbursements.

     As a preliminary matter, we note that petitioner’s appeal from
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                                                         CA 14-00022

the order and judgment in appeal No. 2 must be dismissed because that
document was superseded by the amended order and judgment in appeal
No. 3 (see Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051).
With respect to appeal No. 1, we conclude that the court properly
denied the petition insofar as it sought a charging lien. It is well
settled that only the attorney of record in a particular action is
entitled to a charging lien pursuant to Judiciary Law § 475 (see
Rodriguez v City of New York, 66 NY2d 825, 827; Case v Case, 108 AD3d
1169, 1171-1172). Thus, before an attorney may be granted a charging
lien, “he or she must have appeared for the client by participating in
a legal proceeding on the client’s behalf or by having his [or her]
name affixed to the pleadings, motions, records, briefs, or other
papers submitted in the matter” (Cataldo v Budget Rent A Car Corp.,
226 AD2d 574, 574, lv dismissed 88 NY2d 1017, lv denied 89 NY2d 811
[internal quotation marks omitted]; see Ebert v New York City Health &
Hosps. Corp., 210 AD2d 292, 292-293, lv denied 85 NY2d 806). Here,
neither Cohen nor any other lawyer associated with petitioner was
respondent’s attorney of record in the arbitration proceeding or the
proceeding in Supreme Court to confirm the arbitration award.
Although Cohen filed a motion to confirm the arbitration award on
respondent’s behalf, that motion was dismissed by the court because an
identical motion had been filed by respondent’s attorney of record.
The mere fact that Cohen may have acted as an advisor to respondent or
her attorney of record, or served in an “of counsel” capacity, is not
sufficient to create a charging lien (see Stinnett v Sears Roebuck &
Co., 201 AD2d 362, 364; Itar-Tass Russian News Agency v Russian
Kurier, Inc., 140 F3d 442, 452).

     We further conclude that the court properly denied the petition
insofar as it sought to enforce the contingency fee agreement that
respondent negotiated with petitioner. As the Court of Appeals
recently noted, case law in New York “clearly provides that
circumstances arising after contract formation can render a contingent
fee agreement—not unconscionable when entered into—unenforceable where
the amount of the fee, combined with the large percentage of the
recovery it represents, seems disproportionate to the value of the
services rendered” (Lawrence v Graubard Miller, 11 NY3d 588, 596; see
King v Fox, 7 NY3d 181, 191). Here, respondent was awarded $1.23
million from her arbitration claim and, if the contingency fee
agreement is enforced, petitioner would be entitled to more than
$400,000 in attorney’s fees. Considering the amount of legal work
performed by petitioner on respondent’s behalf, and the minimal risk
that petitioner faced of not being paid for its services, we conclude
that the amount sought by petitioner under the contingency fee
agreement is “ ‘out of all proportion to the value of the professional
services rendered’ ” (King, 7 NY3d at 191, quoting Gair v Peck, 6 NY2d
97, 106), and that the agreement therefore should not be enforced.

     Finally, based on our review of the limited record in appeal No.
3, we see no basis to conclude that the court abused its discretion in
awarding $19,294.95 to petitioner on its application for quantum
meruit attorney’s fees. Although respondent requests that we reduce
the award significantly, we note that her contention is not properly
before us because she did not cross-appeal (see Matijiw v New York
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                                                         CA 14-00022

Cent. Mut. Fire Ins. Co., 292 AD2d 865, 866).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
