Opinion
13678 Index No. 157028/19 Case No. 2020-04219
04-27-2021
In the Matter of DAVID H. BERG & ASSOCIATES, Petitioners/Cross Respondents–Appellants–Respondents, v. Lisa J. WEKSLER, Respondent/Cross–Petitioner–Respondent–Appellant.
Berg & Androphy, New York (Michael M. Fay of counsel), for appellant/respondents-appellants. Levitt LLP, Mineola (Steven L. Levitt of counsel), for respondent/respondent.
Berg & Androphy, New York (Michael M. Fay of counsel), for appellant/respondents-appellants.
Levitt LLP, Mineola (Steven L. Levitt of counsel), for respondent/respondent.
Gische, J.P., Kern, Mazzarelli, Kennedy, JJ.
Order, Supreme Court, New York County (W. Franc Perry, J.), entered June 5, 2020, which to the extent appealed from as limited by the briefs, converted this special proceeding brought to enforce a charging lien into a plenary action and "permitted" petitioner David Berg & Associates’ (Berg) and cross-respondent Michael Fay's motion to dismiss the counterclaims and the petition to be withdrawn without prejudice, unanimously modified, to the extent of vacating the portions that permitted the withdrawal of the petition and motion, restoring the motion to the calendar, and remanding for determination of the motion on the merits, and otherwise affirmed, without costs.
Regardless of whether the parties consented to convert the underlying special proceeding to a plenary action, the court's determination to do so pursuant to CPLR 103(c) was a sound exercise of discretion. Based on the record, there are numerous unresolved factual issues that warrant discovery concerning the amount of attorney's fees, if any, that petitioner is entitled to recover on a quantum meruit basis (see generally Nationwide Mut. Ins. Co. v. Hausen, 143 A.D.2d 577, 533 N.Y.S.2d 63 [1st Dept. 1988] ). We further note that, as a general matter, a claim for quantum meruit recovery, as opposed to a claim on a charging lien, should be brought as a plenary action (see Bernard v. De Rham, 161 A.D.3d 686, 687, 79 N.Y.S.3d 16 [1st Dept. 2018] ; Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 219, 651 N.Y.S.2d 525 [1st Dept. 1997] ). Upon converting the proceeding to an action, the court properly deemed the petition to be converted to a complaint, and the language permitting the petition to be withdrawn was superfluous.
There is no basis in the record, however, to support the court's determination that petitioner and Fay agreed to withdraw their motion to dismiss respondent's counterclaims. Accordingly, the motion should be reinstated and remanded for consideration on the merits in the plenary action.