Desmond v. Socha, 38 A.D.2d 22 (N.Y. App. Div. 1971). · Go Syfert
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Desmond v. Socha, 38 A.D.2d 22 (N.Y. App. Div. 1971). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1994 · …where the attorney's services do not create any proceeds but consist solely of defending a title or interest already held by the client, there is no lien on the at p. 180 ✓
cited 2× by 2 distinct cases, last quoted 1988 · …where the attorneys' services do not create any proceeds but consist solely of defending a title or interest already held by the client, there is no lien on the at p. 180 ✓
52 citation events (7 in the last 25 years) across 7 distinct courts.
Strongest positive: Insurance Corp. v. Latino Americana de Reaseguros, S.A. (nysd, 1994-10-07)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Insurance Corp. v. Latino Americana de Reaseguros, S.A. (2×) also: Cited "see"
S.D.N.Y. · 1994 · signal: see · quote attribution · 1 verbatim quote · confidence high
where the attorney's services do not create any proceeds but consist solely of defending a title or interest already held by the client, there is no lien on the
discussed Cited as authority (verbatim quote) Ins. Corp. of Hannover v. LATINO AMERICANA (2×) also: Cited "see"
S.D.N.Y. · 1994 · signal: see · quote attribution · 1 verbatim quote · confidence high
where the attorney's services do not create any proceeds but consist solely of defending a title or interest already held by the client, there is no lien on the
discussed Cited as authority (verbatim quote) Rosenman & Colin v. Richard
2d Cir. · 1988 · quote attribution · 1 verbatim quote · confidence high
where the attorneys' services do not create any proceeds but consist solely of defending a title or interest already held by the client, there is no lien on the
discussed Cited as authority (verbatim quote) In Matter of Petition of Rosenman & Colin, Appellee-Cross-Appellant, for an Adjudication of Its Rights in the Matter of Sherrier v. Richard. Rosenman & Colin, Cross-Appellant, Julian Sherrier v. Bernice Richard, Defendant-Respondent-Appellant, Cross-Appellee
2d Cir. · 1988 · quote attribution · 1 verbatim quote · confidence high
where the attorneys' services do not create any proceeds but consist solely of defending a title or interest already held by the client, there is no lien on the
discussed Cited as authority (rule) Cellino Law, LLP v. Looney Injury Law PLLC
N.Y. App. Div. · 2023 · confidence medium
Charging liens, as authorized under Judiciary Law § 475, permit an "attorney to exercise control over property which [the attorney] does not possess[, i.e., the settlement proceeds] and secure payment of [the attorney's] fee in the particular litigation by satisfying it from the fund created by his efforts" ( Matter of Desmond v Socha , 38 AD2d 22, 24 [3d Dept 1971], affd 31 NY2d 687 [1972]). "[E]nforcement of a charging lien is founded upon the equitable notion that the proceeds of a settlement are ultimately under the control of the court, and the parties within its jurisdiction, [and the c…
discussed Cited as authority (rule) Moody v. Sorokina
N.Y. App. Div. · 2008 · signal: cf. · confidence medium
Thus, that award represents proceeds created by respondent’s efforts in the matrimonial action rather than the value of an interest “already held by [defendant]” (Zelman, 15 Misc 3d at 375 ; cf. Matter of Desmond v Socha, 38 AD2d 22, 24 [1971], affd 31 NY2d 687 [1972]; Theroux v Theroux, 145 AD2d 625, 628 [1988]).
discussed Cited as authority (rule) In Re Engage, Inc.
Bankr. D. Mass. · 2004 · confidence medium
Petition of Rosenman & Colin, 850 F.2d 57 , 61, 11 Fed.R.Serv.3d 595, 599 (2d Cir.1988); Ekelman v. Marano, 167 N.E. 211, 212 , 251 N.Y. 173, 174 (N.Y.1929); Theroux v. Theroux, 145 A.D.2d 625 , 536 N.Y.S.2d 151 , 153 (2d Dep’t.1988); Matter of Golden, 125 A.D.2d 942 , 510 N.Y.S.2d 340 (4th Dept 1986); Desmond v. Socha, 38 A.D.2d 22, 24 , 327 N.Y.S.2d 178, 180 (3d Dept 1971), aff'd, 31 N.Y.2d 687 , 337 N.Y.S.2d 261 , 289 N.E.2d 181 (1972); Snitow v. Jackson, 4 Misc.2d 351 , 158 N.Y.S.2d 304, 306 (N.Y.Sup.Ct.1956); In re Schick, 215 B.R. 13, 15 (Bankr.S.D.N.Y.1997).
discussed Cited as authority (rule) Cassirer v. Invex, Ltd. (In Re Schick)
Bankr. S.D.N.Y. · 1997 · confidence medium
Rosenman & Colin v. Richard, 850 F.2d at 61 ; Ekelman v. Marano, 167 N.E. at 212 ; Theroux v. Theroux, 145 A.D.2d 625 , 536 N.Y.S.2d 151 , 153 (2d Dep’t 1988); Matter of Golden, 125 A.D.2d 942 , 510 N.Y.S.2d 340, 340 (4th Dep’t 1986); Desmond v. Socha, 38 A.D.2d 22 , 327 N.Y.S.2d 178, 180 (3d Dep’t 1971), aff'd, 31 N.Y.2d 687 , 337 N.Y.S.2d 261 , 289 N.E.2d 181 (1972); Snitow v. Jackson, 4 Misc.2d 351 , 158 N.Y.S.2d 304, 306 (N.Y.Sup.Ct.1956).
discussed Cited as authority (rule) Theroux v. Theroux
N.Y. App. Div. · 1988 · confidence medium
Moreover, where the attorney’s services do not create any proceeds, but consist solely of defending a title or interest already held by the client, there is no lien on that title or interest (see, Matter of Desmond v Socha, supra, at 24).
discussed Cited as authority (rule) United States v. J.H.W. & Gitlitz Deli & Bar, Inc.
S.D.N.Y. · 1980 · confidence medium
United States v. Clinton, 260 F.Supp. 84, 90 (S.D.N.Y.1966); Desmond v. Socha, 38 A.D.2d 22 , 327 N.Y.S.2d 178, 180 (1971), aff'd, 31 N.Y.2d 687 , 337 N.Y.S.2d 261 (1972) (no charging lien under section 475 when attorney only defended an interest and his services neither created a fund or proceeds out of which he sought payment); Spinello v. Spinello, 70 Misc.2d 521 , 334 N.Y.S.2d 70, 76 (Sup.Ct.1972). 9 .
discussed Cited "see, e.g." Goldstein v. 4000 East River Road Associates
N.Y. App. Div. · 1978 · signal: see also · confidence low
Thus, the statute provides: "From the commencement of [a] * * * special * * * proceeding in any court * * * the attorney who appears for a party has a lien upon his client’s cause of action * * * which attaches to a * * * final order in his client’s favor, and the proceeds thereof in whatever hands they may come” (Judiciary Law, § 475; see, also, Matter of Desmond v Socha, 38 AD2d 22 , affd 31 NY2d 687 ).
Retrieving the full opinion text from the archive…
In the Matter of John L. Desmond
v.
Walter J. Socha
Appellate Division of the Supreme Court of the State of New York.
Dec 22, 1971.
38 A.D.2d 22
Cayman, Mead & Gallo (Daniel D. Mead of counsel), for appellant., Bouck & Holloway (Stephen M. Kiernan of counsel), for respondent.
Cited by 26 opinions  |  Published
Per Curiam.

This is an appeal from an order of the Supreme Court at Special Term and from the judgment entered thereon in Schenectady County, which amended and modified a prior order and judgment of that court and which fixed respondent’s attorney’s fee and granted him a lien on certain real property of appellant pursuant to section 475 of the Judiciary Law.

Respondent is an attorney. He successfully represented the appellant in a contest which started when the appellant applied to the Town Board of the Village of G-lenville for a zoning permit to erect multiple family dwellings on his land and ended two years later when the Court of Appeals held the zoning ordinance unconstitutional as it affected appellant’s property. (See Socha v. Smith, 33 A D 2d 835, affd. 26 N Y 2d 1005.)

Because the parties were unable to agree on a respondent’s fee he brought this proceeding pursuant to section 475 of the Judiciary Law. Special Term has. awarded him $19,705 for legal services and imposed a charging lien upon appellant’s real property to secure that sum. The lien is upon the “ determinations, decisions, orders and judgments rendered ’ ’ and ‘ ‘ the specific property benefitted thereby ”,

An attorney may have a general or retaining lien on books or papers in his possession or a special or charging lien upon a cause of action and the proceeds of it. He has no other[*24] lien. Charging liens are provided for by statute. (Judiciary Law, § 475.) The statute allows the attorney to exercise control over property which he does not possess and secure payment of his fee in the particular litigation by satisfying it from the fund created by his efforts. (Matter of Heinsheimer, 214 N. Y. 361.) It is justified because the attorney created the fund or proceeds out of which he is paid. . Before there can be a charging lien, however, there must be something awarded by the judgment, to which the lien can attach. (Kovarsky v. Brooklyn Union Gas Co., 170 Misc. 855, affd. 261 App. Div. 822; Irish Free State v. Guranty Safe Deposit Co., 148 Misc. 256, affd. 242 App. Div. 612; Matter of Herlihy, 274 App. Div. 342, 346-347.) Where the attorneys’ services do not create any proceeds but consist solely of defending a title or interest already held by the client, there is no lien on the realty. (Ekelman v. Marano, 251 N. Y. 173; Morey v. Schuster, 159 App. Div. 602, affd. 217 N. Y. 639, rearg. den. 217 N. Y. 700.)

Appellant’s property did not become the “ proceeds ” of this litigation or of the resulting judgment. The cause of action involved the construction of the town zoning law, not the title or possession of real estate. Undoubtedly, respondent has enhanced the value of the realty by obtaining removal of an onerous zoning restriction, but that enhancement is not the subject of a lien. There was nothing recovered or created by the attorney’s efforts to which the lien could attach. (Matter of Albrecht, 225 App. Div. 423, 426, affd. 253 N. Y. 537.)

Section 475 of the Judiciary Law authorizes relief in cases where the attorney has a lien. If there is no charging lien, the remedy does not lie and the attorney must bring a plenary action to determine and recover his fee. The court is without power to summarily determine the amount of the fee under the statute. (Matter of Albrecht, 132 Misc. 713, 718, affd. 225 App. Div. 423, affd. 253 N. Y. 537; Matter of Snitow v. Jackson, 4 Misc 2d 351 [Eager, J.].)

The judgment and order should be reversed, on the law and the facts, and petition dismissed, without costs.

Reynolds, J. P., Staley, Jr., G-reenblott, Cooke and Simons, JJ., concur.

Judgment and order reversed, on the law and the facts, and petition dismissed, without costs.