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Law Office of Khoshbin v. Law Office of Ruiz2/28/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
The instant controversy, surrounding an attorney's evidently burning desire, after several years of inaction, to enforce his purported statutory charging lien by resorting to an order to show cause, raises novel issues of jurisdiction under the New York City Civil Court Act and unusual facts that have never been examined in any reported New York decision. Also, the rejection of a proposed order to show cause ordinarily requires only a brief hand-written explanation on the face of the order. The present proceeding is one of the rare exceptions to the general rule, thus justifying a developed opinion elaborating on those reasons for the Bar's enlightenment and benefit.
On February 24, 2005, while the undersigned was the "Special II Judge," required to review ex parte applications and sign proper orders to show cause, a representative of petitioner Law Offices of Allan Khoshbin ("Khoshbin") filed papers with the Clerk of Special Term seeking to fix a legal fee. The papers consisted of a proposed order, in the form of an order to show cause, accompanied only by an attorney's affirmation and a one page exhibit.
The affirmation by Ernest Miller, Esq. ("Miller") alleged that he is a member of Khoshbin's practice and that Roberto Abbate ("Abbate"), a former client of the firm, on November 1, 1999, signed a retainer agreement engaging Khoshbin to handle and prosecute a personal injury claim or action on his behalf. On the day before, October 31, 1999, Abbate allegedly had been injured in a motor vehicle accident. The one page retainer agreement, consisting of legal form T 540 by Julius Blumberg, Publisher ("Blumberg form"), bore Abbate's signature and provided an address for him in Queens County, New York, but did not identify the name of either the law firm or the attorney who is being engaged. Neither in the form retainer nor in Miller's affirmation is there a mention of where the accident occurred or the name and address of the defendant or defendants. It is presumed that the accident occurred somewhere within the City of New York, since Miller sketchily states, in his affirmation, that his firm obtained a New York City Police Accident report.
Miller then recites other work that Khoshbin's office performed. Khoshbin acted as a "lia son" between health care providers and the insurance carrier for the payment of no fault first party benefits. Khoshbin prepared some undisclosed "liability analysis" for the insurance carrier, Progressive Insurance Company ("Progressive"), resulting in a pre-action offer of $10,000. Miller's skeletal affirmation omits key facts and dates, but does continue to recite that Abbate rejected the offer.
Khoshbin tried in vain to convince Progressive's claims examiner to increase the offer. When the examiner refused and Abbate announced his final rejection to his attorneys, Khoshbin did nothing.
On or about May 7, 2001, Khoshbin was reportedly stunned to receive papers from the Law Offices of Michael Ruiz, Esq. ("Ruiz"), stating that Abbate was now changing attorneys and requested that Khoshbin execute a "consent to change counsel." A copy of such consent is not attached to Miller's affirmation, because, as stated, the only exhibit consists of a one page Blumberg form entitled "Retainer," leaving a blank in the space provided for identifying the law firm or attorney that is hired. Khoshbin's alleged "Retainer" also was not a contingent sliding scale retainer agreement, as was incorrectly described in Miller's affirmation, but was for a fixed
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