Herald Square Foot Care Associates, Inc. v. Indemnity Insurance Co. of North America

Appellate Division of the Supreme Court of New York

Herald Square Foot Care Associates, Inc. v. Indemnity Insurance Co. of North America

257 A.D.2d 551, 682 N.Y.S.2d 592, 1999 N.Y. App. Div. LEXIS 682

Appellate Division of the Supreme Court of the State of New York·Decided January 28, 1999·Published·Cited by 2 cases

Opinion

—Appeal from order, Supreme Court, New York County (Richard Lowe, III, J.), entered October 20, 1997, which denied the motion of nonparty appellant Matarazzo Blumberg & Associates, P. C., to enforce its charging lien and the liens of two insurance adjusters, unanimously dismissed, without costs.

The underlying action having been discontinued with prejudice on November 21, 1997, after entry of the order appealed from, “no action presently exists to ground the motion made by the nonparty [appellant]” (D’Amico v Nuzzo, 194 AD2d 761), and the appeal from the motion’s denial must accordingly be dismissed. The relief nonparty appellant seeks cannot now be obtained except within the context of a newly commenced separate plenary action (see, Hotel Prince George Affiliates v Grimbilas, 241 AD2d 302, lv dismissed 91 NY2d 887; Matter of Creamer, 37 AD2d 33, 35; Urso v Panish, 94 AD2d 701). Concur—Ellerin, J. P., Wallach, Tom and Andrias, JJ.

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—Appeal from order, Supreme Court, New York County (Richard Lowe, III, J.), entered October 20, 1997, which denied the motion of nonparty appellant Matarazzo Blumberg & Associates, P. C., to enforce its charging lien and the liens of two insurance adjusters, unanimously dismissed, without costs.

The underlying action having been discontinued with prejudice on November 21, 1997, after entry of the order appealed from, “no action presently exists to ground the motion made by the nonparty [appellant]” (D’Amico v Nuzzo, 194 AD2d 761), and the appeal from the motion’s denial must accordingly be dismissed. The relief nonparty appellant seeks cannot now be obtained except within the context of a newly commenced separate plenary action (see, Hotel Prince George Affiliates v Grimbilas, 241 AD2d 302, lv dismissed 91 NY2d 887; Matter of Creamer, 37 AD2d 33, 35; Urso v Panish, 94 AD2d 701). Concur—Ellerin, J. P., Wallach, Tom and Andrias, JJ.

Herald Square Foot Care Associates, Inc. v. Indemnity Insurance Co. of North America, 257 A.D.2d 551, 682 N.Y.S.2d 592, 1999 N.Y. App. Div. LEXIS 682 (N.Y. Ct. App. 1999).

Pincite

257 A.D.2d 551 (Herald Square Foot Care Associates, Inc. v. Indemnity Insurance Co. of North America) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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