Justice Saralee Evans

NEW YORK COUNTY
Supreme Court
DECISION AND ORDER

The decision and order of the court is as follows:

____________________________, plaintiff's prior counsel, obtained a charging lien in the amount of $70,000, "So Ordered" by this court, against plaintiff's share of equitable distribution. The parties thereafter settled the action, structuring the settlement so that all of the parties' liquid assets are paid into an escrow account held by defendant's attorneys, __________________________ to be paid to defendant and her counsel. Of the payment being held by counsel, $125,000 constitutes a prepayment of plaintiff's future child support obligations.

Plaintiff retained no cash benefit, having instead prepaid his future support obligations to defendant. Instead, he retained his own retirement account worth approximately $213,000 and received $565,000 in retirement assets that had been accumulated by defendant.

Movant now seeks to enforce its' lien against moneys escrowed by defendant's attorneys for defendant, her counsel and plaintiff's current counsel. Alternatively, movant asks that its lien be satisfied from the retirement funds awarded plaintiff as his share of equitable distribution.

Counsel for defendant opposes movant's claim to escrowed moneys allocated to payment of their fees and prepayment of plaintiff's obligations, contending in effect that those funds are part of defendant's entitlement under the terms of the stipulation. Plaintiff opposes any payment to his former counsel. He acknowledges that, when offered an immediate hearing on the value of movant's legal services, he accepted a reduction of movant's initial charges of $103,000 to $70,000. He now contends that he has no money and that movant must initiate a plenary action to collect its agreed upon fee.

Under the express terms of plaintiff's "so ordered" agreement with his outgoing counsel, movant is entitled to collect its fee from plaintiff's share of equitable distribution. Plaintiff subsequently chose to use all liquid assets to which he had a claim to defray other obligations, but this does not impact his prior obligation to his former attorneys. Movant is entitled to judgment and the fact that plaintiff may incur taxes or penalties for liquidating retirement assets in order to meet this obligation is of no moment.

For the reasons stated, the motion is granted.

Movant is directed to settle an order effectuating payment of the sum of $70,000 with interest from August 22, 2008 to the date of payment at the rate of 9 percent , from the retirement accounts retained by or transferred to plaintiff pursuant to the stipulation settling the action, to _________________________.

This constitutes the decision and order of the court. Any relief sought in this motion and not addressed herein has nevertheless been considered by the court and is denied.