James H. Ferreira, J.

In this application, petitioner Gary E. Divis, counsel for claimant (hereinafter "petitioner"), seeks an order pursuant to Judiciary Law § 475, allowing petitioner to make disbursements from a $36,290.60 judgment check. This sum arises from a judgment of this Court awarding damages to claimant following a bifurcated trial on damages (see Reynolds v State of New York, UID No. 2010-039-207 [Ct Cl, Ferreira, J., Oct. 27, 2010], affd 95 AD3d 1464 [3d Dept 2012]).^[FN1] Petitioner's application commenced by Order to Show Cause and Verified Petition filed with the Clerk's Office of the Court of Claims on July 23, 2013. Attached to the Petition are a memorandum of law and an exhibit that contains, inter alia, retainer agreements, correspondence and prior judicial decisions.

FACTS

As background, this Court rendered a Decision on damages dated October 27, 2010 and filed November 22, 2010, directing the Clerk of the Court of Claims to enter judgment in claimant's favor in the amount of $25,000.00, together with interest from February 21, 2008, the date of the liability Decision. A judgment on behalf of claimant was entered on November 29, 2010. Claimant and [*2]petitioner had executed a trial retainer for legal services in June 2005 (Exhibit at 111-112).^[FN2] Following the filing of the Court's Decision on damages, claimant and petitioner executed an appellate retainer agreement in April 2011 (see id. at 63-64, 91-92). In that agreement, a preliminary disbursement schedule was proposed as follows:

The record before the Court also indicates that after the February 2008 liability Decision but prior to the damages Decision, claimant entered into two agreements in March 2009 and July 2010 with Peachtree Pre-Settlement Funding, LLC (hereinafter "Peachtree"), wherein the latter agreed to provide claimant with two cash advances totaling $10,550.00 against the proceeds of a prospective judgment (see id. at 122). This sum included one advance for $5,250.00 on March 31, 2009, and one for $5,300.00 on July 13, 2010 (see id.). As of January 12, 2011, the pay-off amount totaled $13,312.50 (see id.). By July 10, 2012, the amount purportedly due Peachtree was $16,875.00 and by May 21, 2013, $19,250.00 was due Peachtree (see id. at 103, 113). Petitioner avers that claimant entered into the agreements "[o]n his own and against my advice" (Petition ¶ 14). By these [*3]agreements, claimant apparently assigned to Peachtree the rights regarding any damages award made by the Court in claimant's favor.

By letter dated September 13, 2012, petitioner advised claimant that the judgment check for $36,290.60 had been received, and proposed a disbursement schedule as follows:

gross judgment	$36,290.60
trial disbursements	- 16,422.70
subtotal	$19,867.90
client's share 67%, preliminary	13,311.49
attorney's share 33%	6,556.41
appeal costs from client's share	13,311.49
attorney's fee	- 10,000.00
appellate disbursements	- 1,340.75
net to client, before Peachtree	$ 1,970.74

The September 13, 2012 letter sought claimant's permission to disburse the funds as proposed and explained to claimant that petitioner "cannot disburse you any sum because you agreed to pay Peachtree, from your share of the judgment, the amounts you borrowed" (Exhibit at 98). The letter was returned to petitioner unsigned on September 26, 2012 (Petition ¶ 8). By letter dated the same day, petitioner returned the September 13 letter to claimant for review (see Exhibit at 104). Petitioner reached claimant by telephone on October 9, 2012, and, according to petitioner, claimant informed him for the first time that the expert retained by petitioner, Dr. Davis, "cost too much and he was no good" and that another doctor, Dr. Diriso, "was better" and would have testified (Petition ¶ 8; see also ¶¶ 7, 9, 10).^[FN3] Again petitioner did not receive a written response to the September 13 letter, and petitioner sent claimant another letter dated February 18, 2013, wherein he repeated his request to claimant to review the September 13 letter and respond either with his approval for petitioner to disburse the funds as proposed or some explanation of his position (see Exhibit at 105). Petition and Order to Show Cause

On July 23, 2013, having been unable to resolve the fee disbursement issue with claimant, petitioner filed the instant Order to Show Cause and Petition, with exhibits and memorandum of law, seeking permission to disburse the proceeds from the $36,290.60 judgment check pursuant to Judiciary Law § 475 as follows:

[*4]

To petitioner for his appellate fee	$10,000.00
To petitioner for his appellate disbursement	1,602.20
To petitioner for his trial disbursements	17,977.57
To petitioner for his trial fee	2,236.95
To claimant on behalf of Peachtree to satisfy his loan	4,473.88
	$36,290.60

(Petition ¶ 1). The Order to Show Cause was made returnable on September 4, 2013.

In response to the Order to Show Cause and Petition, the Court received a letter, dated August 29, 2013, from counsel for Peachtree representing that petitioner and Peachtree had "reached an agreement to increase the proposed payment to Peachtree to $8,000.00 and to reduce the payment to [petitioner] for his appellate fee from $10,000.00 to $6,473.88" and stating that disbursements from the judgment would thus be reallocated as follows:

To petitioner for his appellate fee	$ 6,473.88
To petitioner for his appellate disbursements	1,602.20
To petitioner for his trial disbursements	17,977.57
To petitioner for his trial fee	2,236.95
To Peachtree	8,000.00
	$36,290.60

(Letter from Yankwitt, LLP dated August 29, 2013). Thus, the amount Peachtree would receive increases by $3,526.12 from $4,473.88 to $8,000.00.^[FN4] The letter further asserts that claimant "would not be prejudiced by this distribution because he has already received $10,550 from Peachtree when Peachtree purchased his interest in the judgment, and Peachtree's recovery is limited to the judgment" (see id.). [*5]

On August 16, 2013, the Court received a faxed cover letter from petitioner and, attached, a letter from claimant dated August 11, 2013. In the cover letter, petitioner stated that claimant had sent him a letter and had requested that it be forwarded to the Court. Claimant's letter stated that he was incarcerated at Gowanda Correctional Facility and housed in an infirmary following injuries he allegedly suffered during an altercation with correction officers (Letter from claimant dated August 11, 2013). Claimant stated that "[t]hey will not give me my legal work to have access to the court to proceed on our [sic] to show cause" (id.) (emphasis in original). Petitioner stated in his cover letter that "it would be inappropriate for me to, as he asks, to petition NYSDOCCS to let Mr. Reynolds have access to his legal papers" (Cover letter from petitioner dated August 16, 2013).

DISCUSSION

Judiciary Law § 475 provides that "[f]rom the commencement of an action . . . in any court . . . the attorney who appears for a party has a lien upon his [or her] client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in [the] client's favor, and the proceeds thereof in whatever hands they may come." It further provides that "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."^[FN5] Notably, courts have discretion in discharging their "traditional authority . . . to supervise the charging of fees for professional services under the court's inherent and statutory power to regulate the practice of law" (Matter of Greenwald v Scheinman, 94 AD2d 842, 843 [3d Dept 1983], lv denied 60 NY2d 551 [1983]; accord Hom v Hom, 210 AD2d 296, 297 [2d Dept 1994]). Furthermore, Judiciary Law § 475 " is remedial in character, and hence should be construed liberally in aid of the object sought by the legislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action' " (Tunick v Shaw, 45 AD3d 145, 148 [1st Dept 2007], lv dismissed 10 NY3d 930 [2008], quoting Fischer-Hansen v Brooklyn Hgts. R.R. Co., 173 NY 492, 499 [1903]).

" [U]nder Judiciary Law § 475, a charging lien automatically comes into existence, without notice or filing, upon commencement of the action, and is measured by the reasonable value of the attorney's services in the action, unless fixed by agreement' " (N.K. v M.K., 19 Misc 3d 1124 [A] [Sup Ct, Kings County 2008], quoting Resnick v Resnick, 24 AD3d 238, 239 [1st Dept 2005]; see also LMWT Realty Corp v Davis Agency, 85 NY2d 462, 467 [1995]; Case v Case, 108 AD3d 1169, 1171 [4th Dept 2013]; City of Troy v Capital Dist. Sports, 305 AD2d 715, 716 [3d Dept 2003]). "The lien applies only to proceeds created through the attorney's efforts" (Oppenheim v Pemberton, 164 AD2d 430, 433 [3d Dept 1990]). "Indeed, because a cause of action is a species of property, an attorney acquires a vested property interest in the cause of action at the signing of the retainer agreement and thus a title to property and rights to property' " (Matter of Dresner v State of New York, 242 AD2d at 628, quoting LMWT Realty Corp. v Davis Agency, 85 NY2d at 467 [internal [*6]quotations and citation omitted]). Thus, "[a] charging lien is a security interest in a favorable result of litigation . . . giving the attorney equitable ownership interest in the client's cause of action and ensuring the attorney can collect [a] fee from the fund he has created for that purpose on behalf of the client" (Chadbourne & Parke, LLP v AB Recur Finans, 18 AD3d 222, 223 [1st Dept 2005] [citations omitted]; see Matter of Dresner v State of New York, 242 AD2d at 628; Calabro v Board of Educ. of City of NY, 9 Misc 3d 1127[A] [Sup Ct, Kings County 2005]). Moreover, since the attorney acquires an equitable ownership interest in the cause of action, said interest "cannot be disturbed by the client or anyone claiming through or against the client" (J.K.C. v T.W.C., 39 Misc 3d 899, 907 [Sup Ct, Monroe County 2013]).

Upon a review of the record, including the Petition and accompanying exhibits, and an examination of the applicable law, the Court finds that sufficient basis exists for the Petition to be granted in full with the exception of a reduction of a portion of the trial disbursements, thereby resulting in an increased distribution to claimant. The record shows that petitioner commenced an action on behalf of claimant, achieved a favorable result for claimant and provided capable and effective assistance to claimant throughout the course of his representation on the underlying claim. To support his Petition, petitioner proffered a copy of the appellate brief he prepared on behalf of claimant (see Exhibit at 4-62). Also included with the Petition are various letters from petitioner to claimant, the trial retainer agreement (see id. at 111-112), the appellate retainer agreement, which informed claimant of the projected disbursements and the risks associated with an appeal (see id. at 64-65; 92-93), disbursement calculations as of May 16, 2013 (see id. at 107-109) and an accounting of hours between March 27, 2009 and July 15, 2010 spent working on issues arising from the Peachtree agreements (see id. at 115). In the Court's view, the record reflects a course of diligent counsel by petitioner on behalf of claimant.

However, the Court finds that the portion of the Petition seeking to disburse $17, 977.57 for trial disbursements from the judgment check should be reduced by $3,000.00. The basis for this reduction arises from the expert witness fee of $12,781.14 paid to Dr. Davis on or about May 26, 2010 (see id. at 95, 108). The Court notes that the $12,781.14 fee represents over two-thirds of the trial expenses, and the trial retainer agreement does not include any discussion of, or reference to, the possibility that an expert witness would be retained and/or that expert witness fees may be incurred (see id. at 111-112; see generally Rules of Professional Conduct [22 NYCRR 1200.00] rule 1.5 [b]).^[FN6] The record is also unclear as to whether claimant understood or approved the fees and costs arising from using Dr. Davis. Even though claimant, according to petitioner, did object to the fee paid to Dr. Davis after the judgment check had been issued, the Court finds claimant's objection, albeit rather late in the course of this proceeding, coupled with the absence of any mention in the trial retainer agreement of the need for an expert, or expert witness fees and their cost, warrants a reduction.

The Court further finds that claimant was aware of the Order to Show Cause and failed to raise an objection to the Petition. The record includes an affidavit of service indicating that claimant was served with the Order to Show Cause on July 22, 2013, and claimant's letter dated August 11, [*7]2013 expressly mentions the Order to Show Cause. Although claimant asserts in his August letter that correction officials "will not give me my legal work to have access to the court to proceed on our [sic] to show cause," claimant's letter does not state any opposition to the relief sought in the Petition. In addition, the Court has received no correspondence or communication from claimant, other than the August letter which petitioner forwarded to the Court. Finally, the Court cannot ignore the correspondence in the record from petitioner to claimant requesting a response on the issue of disbursements. In other words, the record shows reasonable and diligent efforts by petitioner to secure claimant's position regarding the disbursement of the judgment check.

Finally, as to Peachtree, the Court declines to accept the proposed disbursement schedule set forth in the August 29, 2013 letter from counsel for Peachtree. At the outset, the August 29, 2013 letter is neither sworn nor verified. In addition, the Court has received no response from petitioner stating that the proposed disbursement as set forth in the August 29 letter is acceptable to him. Further, the two cash advance agreements apparently reached between claimant and Peachtree are not in the record. More fundamentally though, the Court's principle obligation under Judiciary Law § 475 is to resolve the disbursement of the judgment check only insofar as claimant and petitioner are concerned. Peachtree is not a party in the underlying claim (see Rebmann v Wicks, 259 AD2d 972, 973 [4th Dept 1999]). To the extent that petitioner and Peachtree have reached some understanding as between them, the Court sees no reason for it to enter that ancillary process or resolve the issue of monies purportedly due Peachtree (see generally LMWT Realty Corp. v Davis Agency, 85 NY2d at 467; J.K.C. v T.W.C., 39 Misc 3d at 907).

Based upon the foregoing, it is ordered that petitioner's application (M-83819) is granted to the extent provided herein, and the proceeds from the $36,290.60 judgment check may be disbursed as follows:

To petitioner for his appellate fee	$ 10,000.00
To petitioner for his appellate disbursements	1,602.20
To petitioner for his trial disbursements	17,977.57
To petitioner for his trial fee	2,236.95
To claimant	7,473.88
	$36,290.60

Petitioner is directed to serve a copy of this Decision and Order upon claimant by certified mail, return receipt requested at the place listed on the NYSDOCCS website (www.doccs.ny.gov) on the date petitioner mails the Decision and Order and to file with the Court an affidavit of service indicating such service was made. Petitioner is further directed to serve a copy of this Decision and Order upon Peachtree by regular first class mail at the address provided in the letter from Peachtree's counsel, to wit: 140 Grand Street, Suite 501, White Plains, New York 10601 and to file with the Court an affidavit of service indicating such service was made.

Albany, New York

November 25, 2013

JAMES H. FERREIRA

Judge of the Court of Claims

Papers Considered:

1.Order to Show Cause filed July 23, 2013;

2.Verified Petition by Gary E. Divis, Esq., dated June 3, 2013, with exhibit;

3.Memorandum of Law in Support by Gary E. Divis, Esq., dated June 3, 2013;

4.Letter from Gary E. Divis, Esq., dated August 16, 2013, with attached letter from claimant dated August 11, 2013; and

5.Letter from Kathy S. Marks, Esq., dated August 29, 2013.