Petitioner Madeline Lee Bryer, P.C. (Bryer) moves, by order to show cause, for an order: 1) directing respondent Samson Equities LLC (Samson) to account for all funds and/or property received in satisfaction of judgment; 2) restraining Samson from releasing or disbursing any funds and/or property collected in satisfaction of judgment pending determination and satisfaction of the charging lien of Bryer; 3) directing a judicial sale of all properties obtained by Samson in satisfaction of the judgment; 4) vacating the assignment of judgment executed on November 25, 2003; and 5) appointing a guardian ad litem to represent the interests of Scott Daniel Gardner (Gardner). By separate application, Bryer moves to dismiss the counterclaim of Samson.

This proceeding ensues from an action brought by Gardner and his mother, Onelia Matos (Matos), against their former landlord, Ariel Blondet (Blondet), for personal injuries sustained by then infant Gardner caused by his ingestion of lead paint in their apartment. This personal injury lawsuit resulted in a default judgment in the amount of $350,000.00, which was entered on March 28, 1991.^[FN1] Bryer represented Matos and Gardner in the lawsuit. On November 13, 2003, Matos and Gardner executed an "assignment of judgment" in favor of Samson, which provided that Samson was to obtain 40% of all right, title and interest in the money due or that may become due under the judgment, while Matos and Gardner would receive from Samson 60% of the moneys collected from the judgment.

Subsequently, Samson was able to obtain a levy against real property owned by Blondet located at 167 Tompkins Avenue in Brooklyn based upon the assigned judgment. Bryer asserts that pursuant to a standard retainer agreement executed by Matos and Gardner, which entitled Bryer to [*2]one-third of any judgment obtained, and pursuant to section 475 of the Judiciary Law, it is entitled to impose a charging lien against any proceeds obtained as a result of the judgment. Samson interposes a counterclaim sounding in negligence against Bryer for its failure "to take the required action to renew the judgment as a lien against [Blondet's] real property," adversely affecting Samson's attempts to obtain a substantial recovery from Blondet.

As an initial matter, this court finds that Samson's counterclaim sounding in negligence against Bryer is without merit. An attorney is not liable to third parties for negligence absent circumstances giving rise to a duty of care (see Newman v Upton, Cohen & Slamowitz, 10 AD3d 491 [2004]; Crandall v Bernard, Overton & Russell, 133 AD2d 878 [1987], lv denied 70 NY2d 940 [1988]). The issue of the "existence and scope of a duty of care is a question of law" (Church ex rel. Smith v Callanan Indus., 99 NY2d 104, 110-111 [2002]), to be approached with recognition that "[n]egligence is not a stereotyped thing, but, as courts have wisely said, it is a matter of time, place and circumstance; and the same act of a defendant may be a breach of duty toward one person while not a breach of duty toward another" (Levine v City of New York, 309 NY 88, 93 [1955]). The gravamen of Samson's counterclaim is that Bryer never renewed the judgment as a lien against the property after a lapse of ten years. However, even assuming that this inaction constituted malfeasance, such would constitute a breach of duty only toward, if anyone, its clients Matos and Gardner. Bryer cannot be charged with a duty towards any unrelated entity which may otherwise be affected beneficially by its representation of its clients.

As a result, Bryer's motion to dismiss Samson's counterclaim is granted.

Turning to the relief requested by Bryer in its order to show cause, Judiciary Law § 425 provides:

From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien. (emphasis added).

A charging lien may in an appropriate case be enforced against third parties who have taken the proceeds with knowledge or against a defendant who either still possesses the proceeds or who has knowingly paid the proceeds to the client so as to deprive the attorney of an earned fee (see Kaplan v Reuss, 113 AD2d 184, 186-187 [1985]). While Samson contends that Bryer is not entitled to a charging lien because any proceeds obtained are the result of Samson's extensive efforts vis à vis Blondet, there would be no proceeds but for the underlying judgment, which was obtained as a result of Bryer's own efforts in the personal injury lawsuit.

Further, Samson has not demonstrated its contention that Bryer's joining of Matos and Gardner as co-petitioners creates a conflict of interest. There is no indication that the representation [*3]of Matos and Gardner will be adversely affected by Bryer's interest in obtaining its legal fees from the judgment proceeds and Bryer avers that it fully disclosed to Matos and Gardner the implications of its interest (22 NYCRR 1200.20). Also, the fact that the retainer agreement Bryer executed with Matos and Gardner was disposed of in the ordinary course of the law firm's business does not in and of itself constitute a bar to the assertion of a charging lien (see K.E.C. v C.A.C., 173 Misc 2d 592, 600 [1997]). Therefore, this court finds no merit in Samson's argument that Bryer's request for an accounting must be denied as it cannot claim a lien on the proceeds of the property obtained by Samson from Blondet.

At this juncture, based upon the submissions before the court, it is unclear as to what proceeds or property have been obtained by Samson from Blondet, or what financial or payoff arrangements, if any, were agreed to by Blondet and Samson. Accordingly, this court finds that Bryer's request for an accounting of funds and/or property received pursuant to the subject judgment is appropriate, as well as an injunction restraining disposition of the such funds/property pending the resolution of Bryer's petition for a charging lien.

As a result, those branches of Bryer's motion for an accounting and preliminary injunction are granted. Bryer shall post an undertaking in the amount of $17,500.00. As the status of Samson's holdings are unclear at this point, that branch of Bryer's motion for an order directing a judicial sale is denied without prejudice.

With respect to the remainder of Bryer's order to show cause to vacate the assignment of judgment to Samson and directing the appointment of a guardian ad litem for Gardner, based upon allegations that Gardner lacks mental capacity, Bryer has not proffered evidence (e.g. physician/psychiatrist affidavit or report) sufficient to demonstrate that Gardner is incompetent to execute contracts or is in need of a guardian. However, the court's determination on these branches is made without prejudice and may be reconsidered upon the furnishing of satisfactory proof.

Settle Order.

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J. S. C.