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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1999
• Status: Published

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.