Defendant appeals from an order of the Civil Court, New York County (Arthur F. Engoron, J.), entered July 6, 2005, which denied his motion to dismiss the complaint as untimely.

PER CURIAM

Order (Arthur F. Engoron, J.), entered July 6, 2005, reversed, with $10 costs, and the complaint dismissed.

This is an action for attorney's fees against defendant, a former client whom plaintiff represented in a legal malpractice action. Another law firm was substituted for plaintiff, and it was agreed that plaintiff would receive 30% of the fee recovered by the incoming law firm in connection with the disposition of that action. The initial legal malpractice action was dismissed and a
subsequent legal malpractice action was commenced by the defendant herein against the substituted law firm. The second malpractice action was settled and plaintiff now seeks a recovery on a quantum meruit basis against his former client for services rendered in the first action.

At the time of his discharge, plaintiff had a common-law retaining lien on defendant's file, which secured his rights to the reasonable value of the services he performed (see Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454, 458-59 [1989]). However, instead of seeking a determination of his legal fees for services rendered on a quantum meruit basis, he relinquished his retaining lien for a contractual lien of 30% of any fee recovered by the incoming law firm in connection with the initial malpractice action, thereby waiving his right to payment based upon quantum meruit (see Wasserman, Schneider & Barb v. EMI Industries, Inc., 245 AD2d 1 [1997]).

The initial action in which plaintiff was the attorney was ultimately dismissed due to the incoming law firm's malpractice. Since there was no recovery in that case, plaintiff's right [*2]to attorney's fees based on a percentage was extinguished. The fact that defendant was successful in his subsequent malpractice action against the incoming law firm did not entitle plaintiff to recover, on any basis, for the services he rendered in the first action. Moreover, the fact that the second malpractice case was settled did not establish that the first malpractice action would have succeeded on the merits.

This constitutes the decision and order of the court.
I concurI concurI concur
John Corcos Levy -v- Jeffrey LaingCal. No. 05-368
DISSENT: By Justice Phyllis Gangel-Jacob

I dissent and would affirm for the reasons stated by
the Civil Court.
Decision Date: December 19, 2005