Ross v. Magid

22 A.D.2d 829, 255 N.Y.S.2d 281, 1964 N.Y. App. Div. LEXIS 2702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1964
• Status: Published

Opinion

In a negligence action to recover damages for injury to person and property, plaintiff’s former attorney of record (David A. Goldner) appeals from an order of the Supreme Court, Nassau County, dated August 20, 1962, which: (a) granted plaintiff’s renewed motion to substitute attorneys and to dissolve the attorney’s lien of the former attorney; (b) vacated certain provisions of the court’s prior order, dated May 17, 1962; (c) directed the said former attorney to deliver forthwith all papers in the action to Murray S. Lokietz, Esq., plaintiff’s new attorney; (d) declared “void and forfeited as of the date of the disbarment ” of the former attorney, his alleged liens for his prior services and disbursements; and (e) declared the foregoing disposition to be without prejudice to the former attorney’s enforcement by plenary suit of whatever rights he may have in the pending action. Appeal dismissed, with $10 costs and disbursements. The order appealed from, dated August 20, 1962, expressly states that “ no one ” appeared “ in opposition ” to the renewed motion. The order is thus one entered “upon the default” of the former attorney and is not reviewable by him (CPLR 5511). His sole remedy is by motion to open his default (Burn v. Coyle, 258 App. Div. 618). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.