Opinion
March 20, 1990
Appeal from the Supreme Court, New York County (David Saxe, J.).
Petitioner-appellant had represented respondent-respondent in various matters since 1976. In 1985, appellant agreed to represent respondent at an arbitration proceeding to determine royalties due him under a licensing agreement. An award was rendered in respondent's favor and judgment was entered confirming the award. Respondent, however, retained new counsel to represent him in the appeal taken by his adversary. Due to a dispute over attorney's fees, appellant refused to turn over the files in its possession, and respondent moved to substitute new counsel and to compel appellant to relinquish the files. Appellant then sought an order pursuant to Judiciary Law § 475 to enforce its attorney's lien.
The dispute regarding the retainer agreement between the parties has been referred to a Special Referee for fact finding. Inasmuch as there has been no judicial determination that appellant was discharged for cause under circumstances in which no attorney's fees are warranted, appellant has a common-law retaining lien on the file in its possession (Artim v Artim, 109 A.D.2d 811). However, the pending appeal warrants the relief requested by respondent and Supreme Court properly ordered appellant to relinquish the file. Apparently, the parties agreed that if respondent won in arbitration appellant would receive one third of the award. If respondent did not prevail, appellant would be paid a maximum of $150,000, payable out of future income. Thus, in order to secure appellant's right to be paid for services rendered should the Referee find in its favor, respondent is directed to post a $150,000 bond before appellant relinquishes the file (Corby v Citibank, 143 A.D.2d 587; Pileggi v Pileggi, 127 A.D.2d 751).
Concur — Sullivan, J.P., Carro, Rosenberger, Kassal and Ellerin, JJ.