Preview
FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
___ ___________ ______________ _____________________Ç
LEON SIMON and GRACE EDWARDS-SIMON,
Plaintiff(s), Index No: 305209/13
- against -
Hon. Elizabeth A. Taylor
BERNARD E. LEWIS, COLEEN WEAVER. a/k/a COLEEN
WHYTE, AS ADMINISTRATOR OF ETHANS ESTATE TRUST,
Motion Seq: #12
Defendant(s).
________-----------------------------------------------X
MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFFS MOTION TO COMPEL
Albert A. Hatem, Esq.
Albert A. Hatem, PC, Non-Party
202 Mamaroneck Avenue, Ste. 201
White Plains, New York 10601
(914)-686-5700
info@getourmoney.com
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PRELIMINARY STATEMENT
Plaintiffs'
As of the date of application, it is undisputed that Plaintiffs have failed to voluntarily
("AAH"
pay the Judicial judgment awarding Albert A. Hatem, PC, or the "Firm") the sum of $43,812.33
in attorney's fees and disbursements associated with AAH's representation of the Plaintiffs by the Order
& Decision of Judge Linda Jamieson; dated April 14, 2022, which PlaintifPs attempted to vacate, but
were unsuccessful. Neither Decision of the Westchester Supreme Court was Appealed by Plaintiffs. See
Judgment attached heretoas Exhibit 3.
The current balance of this judgment is approximately $31,728.66, as of the date of this
Memorandum, after deducting for monies received to date via bank restraint(s) and wage garnishment of
Grace Edward-Simon. There never has been a written or oral agreement to settle the unpaid services
rendered by AAH to Plaintiffs and AAH, has been forced to utilize the legal tools afforded by Article 52
of the CPLR.
ARGUMENTS IN OPPOSITION
POINT I: TYPES OF LIENS
New York law affords an attorney three [cumulative] remedies to recover the value of his or
her legal services: a) the retaining lien; b) the charging lien, and c) the plenary action in quantum
meruit."
Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 754 N.Y.S.2d 220, 223
1"
(NY A.D. Dep't 2002).
The Charging Lien arises from statute, Judiciary Law § 475, beginning from the moment of
counsel's appearance, and gives the appearing counsel "a lien upon his clients cause of action, claim
come."
or counterclaim, .. . and the proceeds thereof in whatever hands they may N.Y. Judiciary
Law § 475. "[T]he charging lien is a specific attachment to the funds which constitute the clients
recovery,"
Schneider, Kleinick, Weitz, Damashek & Shoot, 754 N.Y.S.2d at 224, and it "follows the
him,"
proceeds into the hands of the client after payment to Fischer-Hansen v. Brooklyn Heights R.
Co., 66 N.E. 395, 397 (NY Court of Appeals 1903)
2
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The Retaining Lien, which arises from Common-law, is fundamentally different. A retaining lien
is a possessory lien recognized under common-law over all property documents, moneys or securities that
come into a lawyer's possession in the course of employment as a lawyer; see Robinson v. Rogers, 237
N.Y. 484 (NY Court of Appeals 1924); Matter of Heinsheimer, 214 N.Y. 361, 364 (NY Court of Appeals
1915); see Note, Attorney's Retaining Lien Over Former Client's Papers, 65 Colum. L. Rev. 296, 301
(1965).
As security for payment, it "gives an attorney the right to keep, with certain exceptions, all of the
papers, documents and other personal property of the client which have come into the lawyer's possession
in his or her professional capacity as long as those items are related to the subject representation".
1"
See Schneider, supra (NY A.D., Dep't 2002).
A law Firm's right to assert a Retaining Lien on its file as security for such unpaid bills is well
13
established. See, e.g., Goldman v. Rafel Estates, Inc., 269 A.D. 647, 649 (NY A.D., Dep't 1945) (the
retaining lien "is a valuable right given by law to secure [attorneys] for the payment of the reasonable
services"
value of the rendered, as with "any other workman who is entitled to retain the things upon
which he has worked, until he is paid for his work"). The attorney thus holds a common-law "retaining
lien,"
which derives from his passive possession of the clients file; see Robinson v Rogers, 237 N.Y. 467
(NY Court of Appeals 1924); Matter of Heinsheimer, 214 N.Y. 361 (NY Court of Appeals 1915); Steves v
3"l
Serlin, 125 AD2d 780 (NY A.D., Dept. 1986).
NY Courts have firmly established that a Retaining Lien is independent of the proceeds of the
lawsuit, and it is extinguished only when the Court that controls the functioning of the lien, orders the
turnover of the file in exchange for (emphasis added) payment of the lawyer's fee or the posting of an
adequate security therefore. In this instance, with the Supreme Court; Westchester County having
conducted a full hearing as to the amount of attorney fees and disbursement due AAH, which has not been
3
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Appealed by Plaintiffs, alleviates the need for this Court to conduct such a hearing as to the amounts due
AAH from Plaintiffs.
Furthermore, the NY Courts have long established that in the absence of exigent circumstances
such as the client's indigence, an attorney should be required to turn over the file Only "in exchange for
payment of his fee or the posting of an adequate security therefore"; Cohen v. Cohen, 183 AD 2d 802
2nd
(NY A.D., Dept. 1992).
In the absence of evidence of misconduct on the part of former counsel, the Court may only
lien"
"require a lawyer claiming a lien to turn over papers subject to the if the client pays "his
payment."
outstanding charges or post[s] adequate security for See Pomerantz v. Schandler, 704 F.2d
2nd
681, 683 (NY Court of Appeals, Cir. 1983).
The Retaining Lien-unlike the Charging Lien-"is founded upon physical possession, and
an attorney may forfeit its retaining lien by voluntarily giving away any of the items to which it may
attached."
have See Schneider, supra (citing Attorney's Retaining Lien: What Items of Clienes
Property or Funds Are Not Subject to Lien, 70 ALR 4th 827; also Nat. Bank & Tr. Co. of Ellenville
3rd
v. Hyman Novick Realty Corp., 72 AD 2d 858, 421 NYS 2d 733 (NY A.D.,
Hampshire Grp. Ltd. v. Scott James Co., 2015 WL 5306232, at *9 (SDNY July 27, 2015); Robinson
v. Rogers, supra.
possession."
"The general or retaining lien is dependent upon ; Steves v. Serlin, 509 N.Y.S.2d
3rd
666, 667 (NY A.D., Dept 1986). "A retaining lien. . . is dependent only upon the attorney's
continued possession of the papers". As the Annotation cited with favor in Schneider, supra, states,
not only is enforcement of the attorney's retaining lien "passive, and cannot ordinarily be actively
enforced,"
but "an attorney's retaining lien will usually be lost by the acts of the attorney in
attached."
voluntarily parting with the possession of the items to which it may have 70 ALR 4th 827.
In the Pomerantz Court, the Second Circuit, held that it would be an abuse of discretion for
a Court to require a former counsel in litigation pending before the Court to turn over papers subject
4
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to a Retaining Lien without requiring the "clienes payment of his outstanding charges or posting
of adequate security for payment,"(emphasis added) id. at 683.
"The retaining lien gives an attorney the right to keep, with limited exceptions, all of the
papers, documents and other personal property of the client which have come into the lawyer's
possession in his or her professional capacity as long as those items are related to the subject
representation."
Schneider, supra (emphasis added).
As a general proposition, before a lawyer is required to surrender the files and documents that
are the subject to this lien, to either the client or a substituted attorney, the outstanding legal fees
must be paid or adequate security for the payment must be posted. Resolution Trust Corp. v.
2nd
Elman, 949 F.2d 624, 626-27 (NY Court of Appeals Cir.1991).
The enumerated Limited Exceptions to the attorney's right to a Retaining Lien are permitted,
upon a proper and sufficient showing of the former client(s) "special circumstances". See Misek-Falkoff
v. International Bus. Machs. Corp., 829 F. Supp. 660, 663 (SDNY 1993). "An exception to the attorney's
right to a retaining lien may be found, in the Court's discretion, where the client has made a clear showing
of:
(1) a need for the documents;
(2) prejudice that would result from the denial of access to the papers; and
bond."
(3) inability to pay the legal fees or post a reasonable Love & Madness, Inc. v. Claire's
Holdings, LLC, 2021 WL 4554058, at *3 (SDNY. Oct. 4, 2021) (quoting Shoe Show, Inc. v.
Launzel, 1993 WL 150322, at *1 (EDNY May 3, 1993).
It is worth repeating exception(s) to the attorney's Retaining Lien may be made when the client
has:1) an urgent need for the papers to defend a criminal prosecution or 2) will be seriously prejudiced
by withholding of them and 3) lacks the means to pay the lawyer's fee and disbursements. Not one of
Movants'
these enumerated exceptions is contained in Order to Show Cause.
Under the presentment of such special circumstances, the court may, in its discretion, (emphasis
added) after balancing the conflicting interests, require the lawyer to release the papers on reasonable
5
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conditions.... Such a release may be ordered, however, only upon the former clients making a clear
.showing of the need for the papers, the prejudice that would result from denying him access to them, and
his inability to pay the legal fees or post a reasonable bond. Pomerantz, supra.; Casper v. Lew
Lieberbaum & Co., Inc., 1999 WL 335334, at *8 (SDNY May 26, 1999) (ruling that there must be a
clear showing of need and prejudice and the inability to pay the legal fees or the bond before the court
may release the files without either a payment or bond).
Plaintiffs'
It is patently clear from a review of instant OSC containing only the affirmation of
Plaintiffs'
Douglas J. Martino, Esq., who is without personal knowledge of the financial condition and
Plaintiffs'
fails to provide an affidavit from both of the Simons attesting to that issue, that the application
facia"
must be denied. The absence of "prima evidence required to lift an Attorney's Retaining Lien is
further illustrated by the fact that Plaintiffs have failed to demonstrate any urgency in possessing the AAH
Plaintiffs'
files and documents, as have not set forth any future date(s) of a Conference or of a pending
trial for calendar year 2024.
It is well established that in order to lift the Retaining Lien, the former client must either pay the
amount owed to the lawyer or post a bond for this amount. See Concrete Flotation Sys., Inc. v. Tadco
Const. Corp., 2009 WL 1209141, at *1 (EDNY May 2, 2009) (lawyer not required to produce papers
over which he asserted a retaining lien "without a resolution of the fee dispute or the posting of an
adequate bon#').
In the instant case, no exigent circumstances have been presented or established. There has not
been a clear showing of any urgency or particularized a need for specific documents, or what, if any
prejudice would result from the denial of access to the file. Additionally, neither Plaintiff has
demonstrated they are indigents, unable to either provide a bond or pay their outstanding debts owed to
AAH and Plaintiff's new counsel appears to have failed to even secure the underlying pleadings in this
action, which are available to him, as a matter of public record.
Plaintiffs or their counsel have always been able to obtain the AAH files and documents by
addressing the Retaining Lien by simply posting adequate security or paying a mutually agreed upon
6
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amount of the outstanding judgment, but they have deliberately and purposely elected to ignore either
option, not to pay their debts, instead engaging in wasteful motion practice.
FILE"
EXCEPTIONS TO RETURNING THE "ENTIRE
Assuming the client pays what is owed or otherwise secures this amount, there may still be a
dispute over what the lawyer must turn over to the former client as part of the client's "file". Not all
documents filed or produced in the former client's case are clearly part of the "file". A former client is not
entitled to "documents intended for internal law office review and use", such as "internal conversations
partners"
among law firm (In re Refco Sec. Litig., 759 F. Supp. 2d 342, 346 (SDNY 2011) (quoting Sage
2nd
Realty Corp. v. Proskaner Rose Goetz and Mendelsohn LLP, 91 NY A.D., Dept 1997), or attorney
outline[s]"
notes, internal research memoranda, and research (Lippe v. Bairnco Corp., 1998 WL 901741,
at *2 (SDNY 1998)).
"file"
If the lawyer's does not include e-mails or other documents that the lawyer would have to
spend time researching for an compiling to give to the former client, then the lawyer may insist on getting
paid for his or her time in preparing these materials-as long as the lawyer's filing system was reasonable.
See NYCBA Ethics Opinion 2008-1 (firm may charge former client for "retrieving electronic documents
from their storage media and reviewing those documents to determine client's right of access"); Sage
Realty, 91 NY 2d at 39 (assembling and delivering file to client is "properly chargeable to the client under
customary fee schedules of the finn").
POINT II: NO NEW ARGUMENTS OR EVIDENCE PERMITTED ON REPLY
facia"
Plaintiffs have failed to meet their "prima burden of proof sufficient as to overcome AAH's
Retaining Lien and their initial pleadings lacks any probative evidence sufficient to warrant the granting
of the broad and sweeping relief requested. Plaintiffs should not be allowed or permitted in any Reply to
present new arguments, legal theories or fix the deficiencies of the initial pleadings, such inclusion of new
Movants'
documents or evidence previously absent from application to this Court.
The function of reply papers is to address arguments made in opposition to the position taken by
the Movant and not to permit the Movant to introduce new arguments in support of, or new grounds for
7
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2"d
the motion. Wells Fargo Bank, N A. v Marchione, 69 AD3d 204, 206 (NY A.D. Dept. 2009)
2"d
(quoting Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678 (NY A.D. Dept. 2005).
Moreover, evidence offered solely on reply is entitled to no consideration (emphasis added) by
13
the Court. Forbes v New York City Transit Authority, 88 AD 3d 546, 547 (NY A.D. Dept 2011).
"Petitioner cannot rely upon evidence which is submitted for the first time in its reply papers to
satisfy its prima facie burden, or to remedy basic deficiencies in its prima facie showing (see,
2nd
e.g., Rengifo v City of New York, 7 AD 3d 773, 773 (NY A.D., Dept 2004), Migdol v City of New
1"
York, 291 AD 2d 201 (NY A.D., Dept 2002).
"Here, the plaintiff's reply papers included new arguments in support of the motion, new grounds,
and evidence for the motion, and expressly requested relief that was dramatically unlike the relief sought
in her original motion ... . Therefore, those contentions, and the grounds and evidence in support of them,
were not properly before the Supreme Court"... Lee v Law Offs. of Kim & Bae, RC., 2018 NY Slip Op
2"4 2nd
03516 (NY Appellate Div. Dept, 2018). See also Castro v. Durban 161 AD 3d 939 (NY A.D.,
Dept. 2018); Matter of Harleysville Insurance v. Rosario, supra.
For the reasons stated above and in the Affirmation of Albert A. Hatem, Esq., the relief sought in
Plaintiffs'
Order to Show Cause should and must be denied in its entirety and the Court should award
Albert A. Hatem, PC, the sum of $2,500.00, as and for attorney's fees incurred in the Opposition of
Plaintiffs'
application.
Dated: White Plains, New York
December 14, 2023
Re ectfully Submitted:
Albert 1. ‰ate , Esq.
Albert A. Hatem, PC, Non-Party
202 Mamaroneck Avenue, Ste. 201
White Plains, New York 10601
(914)-686-5700
info@getourmoney.com
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Preview
FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ___ ___________ ______________ _____________________Ç LEON SIMON and GRACE EDWARDS-SIMON, Plaintiff(s), Index No: 305209/13 - against - Hon. Elizabeth A. Taylor BERNARD E. LEWIS, COLEEN WEAVER. a/k/a COLEEN WHYTE, AS ADMINISTRATOR OF ETHANS ESTATE TRUST, Motion Seq: #12 Defendant(s). ________-----------------------------------------------X MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION TO COMPEL Albert A. Hatem, Esq. Albert A. Hatem, PC, Non-Party 202 Mamaroneck Avenue, Ste. 201 White Plains, New York 10601 (914)-686-5700 info@getourmoney.com 1 of 8 FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 PRELIMINARY STATEMENT Plaintiffs' As of the date of application, it is undisputed that Plaintiffs have failed to voluntarily ("AAH" pay the Judicial judgment awarding Albert A. Hatem, PC, or the "Firm") the sum of $43,812.33 in attorney's fees and disbursements associated with AAH's representation of the Plaintiffs by the Order & Decision of Judge Linda Jamieson; dated April 14, 2022, which PlaintifPs attempted to vacate, but were unsuccessful. Neither Decision of the Westchester Supreme Court was Appealed by Plaintiffs. See Judgment attached heretoas Exhibit 3. The current balance of this judgment is approximately $31,728.66, as of the date of this Memorandum, after deducting for monies received to date via bank restraint(s) and wage garnishment of Grace Edward-Simon. There never has been a written or oral agreement to settle the unpaid services rendered by AAH to Plaintiffs and AAH, has been forced to utilize the legal tools afforded by Article 52 of the CPLR. ARGUMENTS IN OPPOSITION POINT I: TYPES OF LIENS New York law affords an attorney three [cumulative] remedies to recover the value of his or her legal services: a) the retaining lien; b) the charging lien, and c) the plenary action in quantum meruit." Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 754 N.Y.S.2d 220, 223 1" (NY A.D. Dep't 2002). The Charging Lien arises from statute, Judiciary Law § 475, beginning from the moment of counsel's appearance, and gives the appearing counsel "a lien upon his clients cause of action, claim come." or counterclaim, .. . and the proceeds thereof in whatever hands they may N.Y. Judiciary Law § 475. "[T]he charging lien is a specific attachment to the funds which constitute the clients recovery," Schneider, Kleinick, Weitz, Damashek & Shoot, 754 N.Y.S.2d at 224, and it "follows the him," proceeds into the hands of the client after payment to Fischer-Hansen v. Brooklyn Heights R. Co., 66 N.E. 395, 397 (NY Court of Appeals 1903) 2 2 of 8 FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 The Retaining Lien, which arises from Common-law, is fundamentally different. A retaining lien is a possessory lien recognized under common-law over all property documents, moneys or securities that come into a lawyer's possession in the course of employment as a lawyer; see Robinson v. Rogers, 237 N.Y. 484 (NY Court of Appeals 1924); Matter of Heinsheimer, 214 N.Y. 361, 364 (NY Court of Appeals 1915); see Note, Attorney's Retaining Lien Over Former Client's Papers, 65 Colum. L. Rev. 296, 301 (1965). As security for payment, it "gives an attorney the right to keep, with certain exceptions, all of the papers, documents and other personal property of the client which have come into the lawyer's possession in his or her professional capacity as long as those items are related to the subject representation". 1" See Schneider, supra (NY A.D., Dep't 2002). A law Firm's right to assert a Retaining Lien on its file as security for such unpaid bills is well 13 established. See, e.g., Goldman v. Rafel Estates, Inc., 269 A.D. 647, 649 (NY A.D., Dep't 1945) (the retaining lien "is a valuable right given by law to secure [attorneys] for the payment of the reasonable services" value of the rendered, as with "any other workman who is entitled to retain the things upon which he has worked, until he is paid for his work"). The attorney thus holds a common-law "retaining lien," which derives from his passive possession of the clients file; see Robinson v Rogers, 237 N.Y. 467 (NY Court of Appeals 1924); Matter of Heinsheimer, 214 N.Y. 361 (NY Court of Appeals 1915); Steves v 3"l Serlin, 125 AD2d 780 (NY A.D., Dept. 1986). NY Courts have firmly established that a Retaining Lien is independent of the proceeds of the lawsuit, and it is extinguished only when the Court that controls the functioning of the lien, orders the turnover of the file in exchange for (emphasis added) payment of the lawyer's fee or the posting of an adequate security therefore. In this instance, with the Supreme Court; Westchester County having conducted a full hearing as to the amount of attorney fees and disbursement due AAH, which has not been 3 3 of 8 FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 Appealed by Plaintiffs, alleviates the need for this Court to conduct such a hearing as to the amounts due AAH from Plaintiffs. Furthermore, the NY Courts have long established that in the absence of exigent circumstances such as the client's indigence, an attorney should be required to turn over the file Only "in exchange for payment of his fee or the posting of an adequate security therefore"; Cohen v. Cohen, 183 AD 2d 802 2nd (NY A.D., Dept. 1992). In the absence of evidence of misconduct on the part of former counsel, the Court may only lien" "require a lawyer claiming a lien to turn over papers subject to the if the client pays "his payment." outstanding charges or post[s] adequate security for See Pomerantz v. Schandler, 704 F.2d 2nd 681, 683 (NY Court of Appeals, Cir. 1983). The Retaining Lien-unlike the Charging Lien-"is founded upon physical possession, and an attorney may forfeit its retaining lien by voluntarily giving away any of the items to which it may attached." have See Schneider, supra (citing Attorney's Retaining Lien: What Items of Clienes Property or Funds Are Not Subject to Lien, 70 ALR 4th 827; also Nat. Bank & Tr. Co. of Ellenville 3rd v. Hyman Novick Realty Corp., 72 AD 2d 858, 421 NYS 2d 733 (NY A.D., Hampshire Grp. Ltd. v. Scott James Co., 2015 WL 5306232, at *9 (SDNY July 27, 2015); Robinson v. Rogers, supra. possession." "The general or retaining lien is dependent upon ; Steves v. Serlin, 509 N.Y.S.2d 3rd 666, 667 (NY A.D., Dept 1986). "A retaining lien. . . is dependent only upon the attorney's continued possession of the papers". As the Annotation cited with favor in Schneider, supra, states, not only is enforcement of the attorney's retaining lien "passive, and cannot ordinarily be actively enforced," but "an attorney's retaining lien will usually be lost by the acts of the attorney in attached." voluntarily parting with the possession of the items to which it may have 70 ALR 4th 827. In the Pomerantz Court, the Second Circuit, held that it would be an abuse of discretion for a Court to require a former counsel in litigation pending before the Court to turn over papers subject 4 4 of 8 FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 to a Retaining Lien without requiring the "clienes payment of his outstanding charges or posting of adequate security for payment,"(emphasis added) id. at 683. "The retaining lien gives an attorney the right to keep, with limited exceptions, all of the papers, documents and other personal property of the client which have come into the lawyer's possession in his or her professional capacity as long as those items are related to the subject representation." Schneider, supra (emphasis added). As a general proposition, before a lawyer is required to surrender the files and documents that are the subject to this lien, to either the client or a substituted attorney, the outstanding legal fees must be paid or adequate security for the payment must be posted. Resolution Trust Corp. v. 2nd Elman, 949 F.2d 624, 626-27 (NY Court of Appeals Cir.1991). The enumerated Limited Exceptions to the attorney's right to a Retaining Lien are permitted, upon a proper and sufficient showing of the former client(s) "special circumstances". See Misek-Falkoff v. International Bus. Machs. Corp., 829 F. Supp. 660, 663 (SDNY 1993). "An exception to the attorney's right to a retaining lien may be found, in the Court's discretion, where the client has made a clear showing of: (1) a need for the documents; (2) prejudice that would result from the denial of access to the papers; and bond." (3) inability to pay the legal fees or post a reasonable Love & Madness, Inc. v. Claire's Holdings, LLC, 2021 WL 4554058, at *3 (SDNY. Oct. 4, 2021) (quoting Shoe Show, Inc. v. Launzel, 1993 WL 150322, at *1 (EDNY May 3, 1993). It is worth repeating exception(s) to the attorney's Retaining Lien may be made when the client has:1) an urgent need for the papers to defend a criminal prosecution or 2) will be seriously prejudiced by withholding of them and 3) lacks the means to pay the lawyer's fee and disbursements. Not one of Movants' these enumerated exceptions is contained in Order to Show Cause. Under the presentment of such special circumstances, the court may, in its discretion, (emphasis added) after balancing the conflicting interests, require the lawyer to release the papers on reasonable 5 5 of 8 FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 conditions.... Such a release may be ordered, however, only upon the former clients making a clear .showing of the need for the papers, the prejudice that would result from denying him access to them, and his inability to pay the legal fees or post a reasonable bond. Pomerantz, supra.; Casper v. Lew Lieberbaum & Co., Inc., 1999 WL 335334, at *8 (SDNY May 26, 1999) (ruling that there must be a clear showing of need and prejudice and the inability to pay the legal fees or the bond before the court may release the files without either a payment or bond). Plaintiffs' It is patently clear from a review of instant OSC containing only the affirmation of Plaintiffs' Douglas J. Martino, Esq., who is without personal knowledge of the financial condition and Plaintiffs' fails to provide an affidavit from both of the Simons attesting to that issue, that the application facia" must be denied. The absence of "prima evidence required to lift an Attorney's Retaining Lien is further illustrated by the fact that Plaintiffs have failed to demonstrate any urgency in possessing the AAH Plaintiffs' files and documents, as have not set forth any future date(s) of a Conference or of a pending trial for calendar year 2024. It is well established that in order to lift the Retaining Lien, the former client must either pay the amount owed to the lawyer or post a bond for this amount. See Concrete Flotation Sys., Inc. v. Tadco Const. Corp., 2009 WL 1209141, at *1 (EDNY May 2, 2009) (lawyer not required to produce papers over which he asserted a retaining lien "without a resolution of the fee dispute or the posting of an adequate bon#'). In the instant case, no exigent circumstances have been presented or established. There has not been a clear showing of any urgency or particularized a need for specific documents, or what, if any prejudice would result from the denial of access to the file. Additionally, neither Plaintiff has demonstrated they are indigents, unable to either provide a bond or pay their outstanding debts owed to AAH and Plaintiff's new counsel appears to have failed to even secure the underlying pleadings in this action, which are available to him, as a matter of public record. Plaintiffs or their counsel have always been able to obtain the AAH files and documents by addressing the Retaining Lien by simply posting adequate security or paying a mutually agreed upon 6 6 of 8 FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 amount of the outstanding judgment, but they have deliberately and purposely elected to ignore either option, not to pay their debts, instead engaging in wasteful motion practice. FILE" EXCEPTIONS TO RETURNING THE "ENTIRE Assuming the client pays what is owed or otherwise secures this amount, there may still be a dispute over what the lawyer must turn over to the former client as part of the client's "file". Not all documents filed or produced in the former client's case are clearly part of the "file". A former client is not entitled to "documents intended for internal law office review and use", such as "internal conversations partners" among law firm (In re Refco Sec. Litig., 759 F. Supp. 2d 342, 346 (SDNY 2011) (quoting Sage 2nd Realty Corp. v. Proskaner Rose Goetz and Mendelsohn LLP, 91 NY A.D., Dept 1997), or attorney outline[s]" notes, internal research memoranda, and research (Lippe v. Bairnco Corp., 1998 WL 901741, at *2 (SDNY 1998)). "file" If the lawyer's does not include e-mails or other documents that the lawyer would have to spend time researching for an compiling to give to the former client, then the lawyer may insist on getting paid for his or her time in preparing these materials-as long as the lawyer's filing system was reasonable. See NYCBA Ethics Opinion 2008-1 (firm may charge former client for "retrieving electronic documents from their storage media and reviewing those documents to determine client's right of access"); Sage Realty, 91 NY 2d at 39 (assembling and delivering file to client is "properly chargeable to the client under customary fee schedules of the finn"). POINT II: NO NEW ARGUMENTS OR EVIDENCE PERMITTED ON REPLY facia" Plaintiffs have failed to meet their "prima burden of proof sufficient as to overcome AAH's Retaining Lien and their initial pleadings lacks any probative evidence sufficient to warrant the granting of the broad and sweeping relief requested. Plaintiffs should not be allowed or permitted in any Reply to present new arguments, legal theories or fix the deficiencies of the initial pleadings, such inclusion of new Movants' documents or evidence previously absent from application to this Court. The function of reply papers is to address arguments made in opposition to the position taken by the Movant and not to permit the Movant to introduce new arguments in support of, or new grounds for 7 7 of 8 FILED: BRONX COUNTY CLERK 12/14/2023 03:51 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/14/2023 2"d the motion. Wells Fargo Bank, N A. v Marchione, 69 AD3d 204, 206 (NY A.D. Dept. 2009) 2"d (quoting Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678 (NY A.D. Dept. 2005). Moreover, evidence offered solely on reply is entitled to no consideration (emphasis added) by 13 the Court. Forbes v New York City Transit Authority, 88 AD 3d 546, 547 (NY A.D. Dept 2011). "Petitioner cannot rely upon evidence which is submitted for the first time in its reply papers to satisfy its prima facie burden, or to remedy basic deficiencies in its prima facie showing (see, 2nd e.g., Rengifo v City of New York, 7 AD 3d 773, 773 (NY A.D., Dept 2004), Migdol v City of New 1" York, 291 AD 2d 201 (NY A.D., Dept 2002). "Here, the plaintiff's reply papers included new arguments in support of the motion, new grounds, and evidence for the motion, and expressly requested relief that was dramatically unlike the relief sought in her original motion ... . Therefore, those contentions, and the grounds and evidence in support of them, were not properly before the Supreme Court"... Lee v Law Offs. of Kim & Bae, RC., 2018 NY Slip Op 2"4 2nd 03516 (NY Appellate Div. Dept, 2018). See also Castro v. Durban 161 AD 3d 939 (NY A.D., Dept. 2018); Matter of Harleysville Insurance v. Rosario, supra. For the reasons stated above and in the Affirmation of Albert A. Hatem, Esq., the relief sought in Plaintiffs' Order to Show Cause should and must be denied in its entirety and the Court should award Albert A. Hatem, PC, the sum of $2,500.00, as and for attorney's fees incurred in the Opposition of Plaintiffs' application. Dated: White Plains, New York December 14, 2023 Re ectfully Submitted: Albert 1. ‰ate , Esq. Albert A. Hatem, PC, Non-Party 202 Mamaroneck Avenue, Ste. 201 White Plains, New York 10601 (914)-686-5700 info@getourmoney.com 8 of 8