Wallach v. Unger & Stutman, LLP

48 A.D.3d 360, 853 N.Y.S.2d 295

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered December 12, 2006, which, in an action for legal malpractice, granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.

The action is barred by the unappealed order that recognized defendants’ charging lien in the underlying action in which defendants were discharged by plaintiff (Smira v Roper, Barandes & Fertel, 302 AD2d 305 [2003]; Molinaro v Bedke, 281 AD2d 242 [2001]). This result is not affected by the parties’ stipulation in which defendants agreed not to pursue the charging lien until after the disposition of the instant action. Since the charging lien had already been imposed, the stipulation merely deferred the proceeding for fixing the amount of defendants’ fee. Concur—Lippman, P.J., Friedman, Williams and Acosta, JJ.