Molinaro v. Bedke

Mar 15, 2001
Versions:281 A.D.2d 242
721 N.Y.S.2d 534
2001 N.Y. App. Div. LEXIS 2435

—Appeal from order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 14, 2000, which granted defendants’ motion to dismiss the complaint as barred by res judicata, and denied plaintiffs’ motion to serve an amended complaint, deemed an appeal from the judgment, same court and Justice, entered May 15, 2000, dismissing the complaint, and so considered, the judgment is unanimously affirmed, without costs.

The appeal should be considered on the merits even though plaintiffs have not appealed the judgment that ministerially implemented the order they did appeal (CPLR 5501 [c]; see, Morris & Partners v Alfin, Inc., 234 AD2d 56; Neuman v Otto, 114 AD2d 791). The action was properly dismissed on the ground that plaintiffs’ claim of legal malpractice is barred by the order rendered in the underlying action permitting defendants to withdraw and recognizing their claim to a charging lien on account of their services in that action (see, Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143). The record clearly shows that it was a charging lien that defendants sought, and not, as plaintiffs claim, a retaining lien, and it would not necessarily avail plaintiffs even if it were a retaining lien that had been recognized in the underlying action (cf., Summit Solomon & Feldesman v Matalon, 216 AD2d 91, 92, lv denied 86 NY2d 711; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 39). Nor does it avail plaintiffs for purposes of their malpractice claim that the order recognizing defendants’ charging lien did not fix the amount thereof, a task that could properly be deferred pending resolution of the underlying action (see, Klein v Eubank, 87 NY2d 459; cf., Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218, 219). Of course, plaintiffs can challenge the reasonableness of defendants’ claimed fee in defense of defendants’ counterclaims. The motion court *243properly denied plaintiffs leave to serve an amended complaint raising only the barred malpractice claims. Concur — Sullivan, P. J., Rosenberger, Williams, Mazzarelli and Friedman, JJ.