Trafelet v. Trafelet

217 A.D.3d 644, 190 N.Y.S.3d 73, 2023 NY Slip Op 03563

Opinion

Trafelet v Trafelet (2023 NY Slip Op 03563)

Trafelet v Trafelet

2023 NY Slip Op 03563

Decided on June 29, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 29, 2023
Before: Kern, J.P., Moulton, Mendez, Shulman, Rodriguez, JJ.

Index No. 312168/15 Appeal No. 600 Case No. 2023-00863

[*1]Lara S. Trafelet, Plaintiff-Respondent,

v

Remy W. Trafelet, Defendant. Buchanan Ingersoll & Rooney P.C., Nonparty-Appellant.

Holland E. Knight LLP, New York (Stephen J. Riccardulli of counsel), for appellant.

Schlam Stone & Dolan LLP, New York (John Moore of counsel), for respondent.

Order, Supreme Court, New York County (Joseph P. Burke, Special Referee), entered on or about February 6, 2023, which, to the extent appealed from as limited by the briefs, denied nonparty Buchanan Ingersoll & Rooney P.C.'s (BIR) request for an order enforcing its charging lien against certain funds held in escrow by plaintiff's counsel, unanimously reversed, on the law, without costs, and the request granted.

Although the order for review is not appealable as of right because it did not decide a motion on notice (see CPLR 5701 [a] [2]), we exercise our discretion in the interest of judicial economy, deem BIR's notice of appeal to be a motion for leave to appeal, and grant that motion (see CPLR 5701[c]; Serradilla v Lords Corp., 12 AD3d 279, 280 [1st Dept 2004]).

BIR is entitled to enforce its charging lien, the existence of which has been recognized by the court (Matter of Trafelet v Cipolla & Co., LLC, 190 AD3d 573 [1st Dept 2021]), and the amount of which was set by stipulation against certain funds held in escrow by plaintiff's counsel, while maintaining its counterclaim in plaintiff's legal malpractice action (see Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218, 218-219 [1st Dept 1997]; Anonymous v Anonymous, 258 AD2d 279, 280 [1st Dept 1999]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 29, 2023