Picott v. ATA Housing Corp. , 760 N.Y.S.2d 883 ( 2003 )

—In an action to recover damages for personal injuries, the defendant’s outgoing counsel, Goldberg & Carlton, appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated December 13, 2002, which granted the defendant’s motion to compel it to turn over the file relating to the action.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

Where, as here, “a client requests that papers in the possession of his former attorney be returned to him, and the attorney asserts a claim for compensation for services rendered, the attorney is entitled to a determination fixing the value of his services, and the amount so fixed must be paid or otherwise secured to the attorney before any such turnover may be enforced” (Hom v Hom, 210 AD2d 296, 298 [1994] [internal quotation marks omitted]). Whether the fee so fixed shall be presently payable or secured by a lien on the cause of action rests in the sound discretion of the trial court (id.). Since it is undisputed that the defendant failed to pay outgoing counsel for its services, and no challenge has been raised as to the validity of Goldberg & Carlton’s bill, the Supreme Court erred in directing the law firm to turn over the file to incoming counsel. Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.