| Matter of New York Diet Drug Litig. |
| 2008 NY Slip Op 00612 [47 AD3d 586] |
| January 31, 2008 |
| Appellate Division, First Department |
| In the Matter of New York Diet Drug Litigation. Clara Appel-Holeet al., Plaintiffs, v Wyeth-Ayerst Laboratories et al., Defendants. Parker & WaichmanLLP et al., Intervenor Respondents; Napoli, Kaiser & Bern, LLP, et al., IntervenorAppellants. |
—[*1] Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III of counsel), forrespondents.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered March 27, 2007,which, to the extent appealed from as limited by the briefs, upon reargument, granted the motionby Parker & Waichman (P & W) and certain of its clients to intervene as parties plaintiff,unanimously affirmed, without costs.
P & W, the referring attorneys, claim that in a mass settlement of litigation arising from theuse of Fen-Phen, settling attorneys Napoli, Kaiser & Bern (NKB) misallocated settlement awardsand costs to the referred clients. The court properly allowed P & W, as well as a group of itsclients, to intervene and seek disclosure of certain documents in support of a settlement orderdated November 7, 2001. "The remedy for fraud allegedly committed during the course of a legalproceeding must be exercised in that lawsuit by moving to vacate the civil judgment (CPLR 5015[a] [3]), and not by another plenary action collaterally attacking that judgment" (St. Clement v Londa, 8 AD3d 89,90 [2004]). P & W and its clients properly so moved. Furthermore, P & W's action in moving tointervene was not untimely. To the contrary, any delay in P & W's motion was due largely toNKB's own action in moving ex parte for the settlement order despite its own awareness that P &W disputed the settlement allocations.[*2]
We have considered NKB's other contentions and findthem unavailing. Concur—Mazzarelli, J.P., Marlow, Catterson and Kavanagh, JJ.[See 15 Misc 3d 1114(A), 2007 NY Slip Op 50647(U).]