Expo Electronics, Ltd. v. 46 Estates Corp.

222 A.D.2d 288, 635 N.Y.S.2d 26, 1995 N.Y. App. Div. LEXIS 12846

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered June 22, 1994, which, inter alia, precluded plaintiffs counsel from asserting any claims for attorney’s fees in this action, unanimously affirmed, without costs.

Notwithstanding the less than commendable conduct by plaintiff and its Civil Court attorney, we are constrained to affirm since the IAS Court properly refused to allow an attorney’s charging lien pursuant to Judiciary Law § 475 as there are no proceeds in this discontinued action to which such a lien could attach (see, Goldstein, Goldman, Kessler & Underberg v 4000 E. Riv. Rd. Assocs., 64 AD2d 484, 487, affd 48 NY2d 890). Counsel must bring a plenary action to recover his fee (see, Matter of Desmond v Socha, 38 AD2d 22, 24, affd 31 NY2d 687). Concur— Ellerin, J. P., Ross, Nardelli and Williams, JJ.