ORDERED that this motion by plaintiff for an Order granting plaintiff leave to renew and/or reargue his prior motion to impose sanctions upon defendants, and granting plaintiff costs and attorney's fees, which was denied by Order of this Court dated February 29, 2008, is hereby GRANTED. Upon renewal and reargument, plaintiff's motion is DENIED for the reasons set forth hereinafter.

As recited in the Order of February 29, 2008, plaintiff was retained by MARION BREWSTER on or about January 20, 2006, in connection with a motor vehicle accident that occurred on September 8, 2005. Ms. Brewster had previously retained [*2]defendant law firm to represent her with respect to the same accident. Plaintiff alleges that after Ms. Brewster retained him, he sent a letter to defendants requesting a transfer of the file, but defendants failed to forward the file to him. Thereafter, on or about April 18, 2006, plaintiff was notified by defendants that Ms. Brewster had re-retained defendants, and as such, on or about April 24, 2006, plaintiff forwarded a copy of his file to defendants. By letter of even date, plaintiff advised defendants that he was "claiming a lien" on the file. On or about March 29, 2007, plaintiff alleges he was advised that Ms. Brewster's matter had settled in August of 2006 prior to commencement of suit, and as a result thereof, defendants received a legal fee in the amount of $3,166.66. Defendants disputed the existence of any valid lien asserted by plaintiff, and claimed that plaintiff had not performed any work on the case.

Plaintiff then commenced this special proceeding by Order to Show Cause and petition seeking "full legal fees with regard to the work performed," costs, and the imposition of sanctions against defendants for their alleged failure to originally deliver the file or to honor plaintiff's lien. Although not specifically alleged or demanded in the petition, plaintiff apparently seeks fifteen (15%) percent of the fee received by defendants, or $475.00, which the Court only divined based upon a letter from defendant PETER J. ALSEN, ESQ. to plaintiff dated October 12, 2007. By Order dated February 29, 2008, this Court denied plaintiff's application, finding that as an action had never been commenced, plaintiff never appeared on behalf of Ms. Brewster, and therefore was not entitled to a charging lien pursuant to Judiciary Law § 475.

Plaintiff has now moved to renew and/or reargue his prior motion. Plaintiff argues that he is entitled to compensation on a quantum meruit basis, notwithstanding the fact that an action was never commenced. As plaintiff has not proffered additional material facts, plaintiff has moved for leave to reargue although his motion is not denominated as such in violation of CPLR 2221(d)(1). A motion for leave to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the original motion, but shall not include any matters of fact not offered on the prior motion (see CPLR 2221[d]; Cruz v Masada Auto Sales, Ltd., 41 AD3d 417 [2007]; Barrett v Jeannot, 18 AD3d 679 [2005]).

In New York, if a lawyer is discharged for cause, he or she is not entitled to legal fees. If the lawyer is discharged without cause and prior to the conclusion of the case, however, he or she may recover either: (1) in quantum meruit, the fair and reasonable value of the services rendered; or (2) a contingent portion of the former client's ultimate recovery, but only if both of the parties have so agreed. Recovery on a quantum meruit basis is called for even where the attorney discharged without fault was employed under a contingent fee contract (Lai Ling Cheng v Modansky Leasing Co., 73 [*3]NY2d 454 [1989]). Where there is a fee dispute between attorneys, the amount due an outgoing attorney is based on the proportionate share of the work performed (Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, supra; Russo v City of New York, 48 AD3d 540 [2008]). Accordingly, plaintiff may be entitled to a legal fee in proportion to the work he performed on the case, notwithstanding the fact that he is not entitled as a matter of law to a statutory charging lien pursuant to Judiciary Law § 475.

As discussed, in an attempt to collect his fee of $475.00, plaintiff has commenced this special proceeding by Order to Show Cause and petition. However, statutory authorization must exist for the use of a special proceeding to enforce a particular right (CPLR 103[b]; 401), and no such statutory authorization exists herein. Notwithstanding the foregoing, the Court is mindful that CPLR 103(c) provides that a court may convert a special proceeding to an action if jurisdiction is obtained over the parties (CPLR 103[c]). Here, while jurisdiction may have been obtained over the "defendants" herein, as defendants were served by certified mail, return receipt requested, in compliance with the directive of the Court in the Order to Show Cause (Jones, J.) (see e.g. Stern v Garfinkle, 22 AD3d 694 [2005]), defendants have alleged that they were not served with any of the exhibits referenced in and attached to the Order to Show Cause and petition. A copy of any writing which is attached to a pleading is a part thereof for all purposes (CPLR 3014).

On this record, the Court, in its discretion, declines to convert the instant proceeding to a civil action pursuant to CPLR 103(c) (see generally Matter of Concerned Taxpayers of Stony Point v Town of Stony Point, 28 AD3d 657 [2006]). A review of the petition reveals that it fails to meet the basic pleading requirements of a civil action. The petition lacks allegations with respect to the basis for venue, the basis for jurisdiction, or a description of the parties. Further, the petition lacks statements sufficiently particular to give the court and parties notice of the occurrence (see CPLR 3013), and lacks separately stated causes of action (see CPLR 3014). Moreover, although plaintiff served the petition by certified mail, return receipt requested, as directed by the Court, such service would ordinarily not be sufficient to establish jurisdiction over these defendants in a civil action (see CPLR 308, et seq.). In any event, defendants allege that they were not served with a complete set of pleadings. The Court finds that although labeled a petition, in actuality it is merely an attorney affirmation, which may be utilized and relied upon except when the attorney is also a party (see CPLR 2106; Slavenburg Corp. v Opus Apparel, Inc., 53 NY2d 799 [1981]; Schutzer v Suss-Kolyer, 57 AD2d 613 [1977]).

In view of the foregoing, this motion to reargue is GRANTED. Upon reargument, plaintiff's application for the imposition of sanctions upon defendants, and an award of attorney's fees and costs is DENIED, and this special proceeding is dismissed.

The foregoing constitutes the decision and Order of the Court.

Dated: July 9, 2008

HON. JOSEPH FARNETI

Acting Justice Supreme Court