Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00794-MMS

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Filed 08/28/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) VOLMAR CONSTRUCTION, INC., ) ) No. 05-794C ) (Judge Sweeney) Plaintiff, ) ) v. ) Affirmation In ) Opposition to Motion To ) Change Attorney of Record ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) GARY MARCUS, being duly sworn, affirms and says: 1. I am the Attorney of Record in this action. 2. I submit this affirmation in opposition to Plaintiff's Motion To Change Attorney of Record, but only to the extent that Plaintiff's motion does not have a provision ordering the payment to me of legal fees due and owing or in the alternative a provision that recognizes a lien in my favor for such fees as provided for under the New York Judiciary Law Section 475. 3. I would consent to any such motion to change the attorney of record that provided for the payment of the legal fees due and owing me on this matter or that recognizes a lien in my favor as provided for under the New York Judiciary Law Section 475 for those fees. 4. At the time of the commencement of this action until March 31, 2006, I was Of Counsel to the firm of Goldberg and Connolly.

Case 1:05-cv-00794-MMS

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Filed 08/28/2006

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5. I was authorized, directed and retained by Goldberg and Connolly to render legal services with respect to this matter, at the agreed upon hourly rate of $95 per hour. 6. Effective March 31, 2006, Goldberg and Connolly summarily terminated my Of Counsel relationship and directed me to do no further work in that capacity. 7. At the time of the termination of my Of Counsel relationship with Goldberg and Connolly, I had rendered 10.8 hours ($1026) on this matter that Goldberg and Connolly had not paid to me. 8. Although I have subsequently made demands upon Goldberg and Connolly for payment of these fees, as of the date of this affirmation they remain unpaid. 9. Goldberg and Connolly has invoiced the Plaintiff for my services at $295 per hour and upon information and belief the Plaintiff has paid Goldberg and Connolly these invoices, including the time which Goldberg and Connolly refused to pay me. 10. The New York Judiciary Law section 475 provides as follows: S 475. Attorney's lien in action, special or other proceeding. From the commencement of an action, special or other proceeding in any Court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client`s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client`s favor, and the proceeds thereof in whatever hands they may come; and 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. 11. This provision of the New York Judiciary law unequivocally grants me as the Attorney of Record in this action a lien upon the Plaintiff's cause of action and

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Case 1:05-cv-00794-MMS

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Filed 08/28/2006

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further unequivocally grants this Court the authority upon my petition to "determine and enforce the lien." 12. While I have no objection to the Change of the Attorney of Record, such a change must be conditioned upon the payment to me of $1026 in legal fees due and owing or in the alternative the determination by this Court that I have a valid lien against the cause of action and the proceeds derived therefrom for that amount.

WHEREFORE, it is respectfully requested and this Court is petitioned to order that the attorney of record for the Plaintiff in this actions be changed subject to the simultaneous payment to Gary Marcus by the Plaintiff or its new counsel of record legal fees in the amount of $1026 or in the alternative the determination of this Court that Gary Marcus has a valid lien on the Plaintiff's cause of action and the proceeds there of in the amount of $1026 and that the Plaintiff and its new counsel of record acknowledge in writing the validity of that lien. I do so affirm the foregoing under penalties of perjury. S/ Gary Marcus Gary Marcus Gary Marcus, Attorney at Law, P.C. 600 Old Country Road Suite 241 Garden City, NY 11530-2011 Tel: (516) 301-7776 Fax: (941) 870-2160 E-mail: [email protected] Dated: August 28, 2006

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Case 1:05-cv-00794-MMS

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Filed 08/28/2006

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CERTIFICATE OF SERVICE I hereby certify that on August 28, 2006, the foregoing AFFIRIMATION IN OPPOSITION TO MOTION TO CHANGE ATTORNEY OF RECORD was serviced upon Goldberg and Connolly, 66 North Village Avenue, Rockville Centre, NY 11570 by regular mail. Dated: Sarasota, Florida August 28, 2006 S/ Gary Marcus Gary Marcus Gary Marcus, Attorney at Law, P.C. 600 Old Country Road Garden City, NY 11530-2011 Tel: (516) 301-7776 Fax: (941) 870-2160 E-mail: [email protected]

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